author: BARDGETT, Judge. PINCH, Judge

text:
    William R. KOSTMAN, Commissioner of Finance, Appellant, v. PINE LAWN BANK AND TRUST COMPANY, a Missouri Banking Corporation, and William J. Bollwerk, Chairman, Missouri State Banking Board, et al., Respondents.
    No. 59299.
    Supreme Court of Missouri, En Banc.
    Sept. 13, 1976.

      Irven L. Friedhoff, Jefferson City, for appellant.
    Albert Schoenbeck, St. Louis, Shook, Hardy & Bacon, Kansas City, D. Jeff Lance, St. Louis, and John H. Hendren, Jefferson City, for respondents.
   BARDGETT, Judge.

The Commissioner of Finance of Missouri (commissioner) appealed to the Missouri court of appeals, Kansas City district, from the judgment of the circuit court of Cole county which judgment affirmed the decision of the Missouri State Banking Board (board) allowing respondent Pine Lawn Bank and Trust Co. (bank) to change its name and relocate. The board’s decision, in effect, reversed the determination made by the commissioner on the bank’s application.

The court of appeals by opinion held that the commissioner lacked legal standing to appeal the judgment of the circuit court and upon that ground affirmed the circuit court’s judgment. This court sustained the commissioner’s application for transfer pursuant to Art. V, sec. 10, Mo.Const., as amended 1970, to decide the question of whether the commissioner has legal standing to obtain review in circuit court of the board’s decision and thereafter to appeal to the appropriate appellate tribunal in Missouri.

The court has concluded that the commissioner, of finance does not have the legal right or standing to seek review in circuit court from a decision and order of the state banking board. The opinion of the court of appeals, Kansas City district, authored by Ronald L. Somerville, Judge, is adopted as the opinion of this court and is set forth infra in quotes followed by additional comments of this court.

“Pitted against each other on this appeal are the Commissioner of Finance (hereinafter referred to as the Commissioner) and the State Banking Board, both of whom occupy official positions in the same division (Division of Finance) of the same department (Business and Administration) of the executive branch of state government. The root of this discordant intragovernmen-tal confrontation is an application by a state chartered bank to amend its articles of agreement so as to permit it to change its name and relocate its main banking house.

“The respondents on appeal are the applicant bank and the chairman and members of the State Banking Board. The Commissioner is the sole appellant. Respondents vigorously contend that the Commissioner is not an ‘aggrieved’ person within the purview and meaning of Section 512.020, RSMo 1969, and therefore lacks legal standing to appeal from a judgment entered by the Circuit Court of Cole County affirming a decision of the State Banking Board permitting the applicant bank to amend its articles of agreement so as to change its name and effect a relocation of its main banking house. Apparently anticipating that his standing to appeal would become a crucial issue, the first of the four points asserted by the Commissioner before this court addresses that issue. The following delineation of facts is limited to outlining the progression of procedural events leading up to crucial issue which this court is called upon to decide.

“On January 15, 1974, the Pine Lawn Bank and Trust Company (heretofore and hereafter referred to as the applicant bank), pursuant to Section 362.325, RSMo 1969, applied to the Commissioner for permission and approval to amend its articles of agreement so as to permit it to change its name and relocate its main banking house from 6149 Natural Bridge Avenue, Pine Lawn, Missouri to the southeast corner of the intersection of Missouri Route 725 and Ladue Road, Ladue, Missouri. On June 18, 1974, the Commissioner, after having conducted an examination as prescribed by subparagraph 7 of Section 362.325, supra, refused to grant the applicant bank permission and approval to amend its articles of agreement in the particulars heretofore mentioned. The applicant bank, pursuant to subparagraph 7 of Section 362.325, supra, timely appealed from the Commissioner’s refusal to the State Banking Board. The Clayton Bank and the First National Bank of Clayton (hereinafter referred to as the opponent banks), as provided in subpara-graph 3 of Section 361.095, RSMo 1969, were permitted to intervene in the hearing conducted by the State Banking Board pursuant to Section 361.094, RSMo 1969, regarding the applicant bank’s appeal. The State Banking Board rendered its decision on July 26, 1974, whereby it reversed the Commissioner and granted the applicant bank permission to amend its articles of agreement as requested.

“On August 27, 1974, the Commissioner, ostensibly pursuant to Section 536.100, RSMo 1969, and Rule 100.03, filed a petition in the Circuit Court of Cole County for judicial review of the decision rendered by the State Banking Board. On August 30, 1974, the opponent banks did likewise. The separate petitions for review were ordered consolidated for hearing by the Circuit Court of Cole County since a common issue was presented by both petitions. On October 24, 1974, the applicant bank filed a motion in the Circuit Court of Cole County seeking to dismiss the Commissioner’s petition for judicial review on the ground that he was not an ‘aggrieved party’ within the meaning of Section 536.100, supra, and Rule 100.03, supra, and therefore lacked the requisite legal standing to seek judicial review of the decision rendered by the State Banking Board. On November 15,1974, the City of Pine Lawn was granted leave by the Circuit Court of Cole County to intervene in the hearing to be held on the consolidated petitions for judicial review.

“On November 20,1974, the Circuit Court of Cole County overruled the applicant bank’s motion to dismiss the Commissioner’s petition for judicial review and, after all parties were heard, found, inter alia, that the decision of the State Banking Board was ‘supported by competent and substantial evidence upon the whole record’ and entered judgment affirming same.

“Intervenor, the City of Pine Lawn, and the opponent banks did not appeal fi;om the judgment rendered by the Circuit Court of Cole County, and may therefore be said to have judicially acquiesced to its legal propriety. The Commissioner, however, refused to acquiesce to the legal propriety of the judgment rendered by the Circuit Court of Cole County and by a timely appeal to this court seeks reversal of said judgment on three grounds directed toward its merits. If the Commissioner be not an ‘aggrieved party’ within the purview and meaning of Section 512.020, supra, then he lacks legal standing to invoke appellate review of said judgment and it becomes unnecessary to address the three points asserted by him striking at the merits of the judgment.

“The weight of authority negates the right of an administrative officer of a branch of government, the position occupied by the Commissioner herein, who has suffered defeat at the hands of an administrative tribunal with jurisdiction to review his actions, the position occupied by the State Banking Board herein (Section 361.094, supra), to invoke judicial review of an administrative tribunal’s decision absent statutory authority to do so. See State ex rel. Broadway Petro. Corp. v. City of Elyria, [18 Ohio St. 23] 247 N.E.2d 471 (Ohio 1969), and cases therein cited. The Commissioner asserts that subparagraph 3 of Section 361.095, RSMo 1969, Section 536.100, RSMo 1969, and Section 512.020, RSMo 1969, statutorily vest him with authority to run the gamut of judicial review regarding the State Banking Board’s reversal of his initial decision.

“That portion of subparagraph 3 of Section 361.095, supra, seized upon by the Commissioner reads as follows: ‘At any hearing provided for in Section 361.094 the Commissioner of Finance shall be deemed a party . . Section 361.094, RSMo 1969, referred to in subparagraph 3 of Section 361.-095, supra, statutorily impregnates the State Banking Board with jurisdiction to hear and by judicial order determination all appeals from refusals of the Commissioner to grant certificates of incorporation to proposed incorporators of banks and trust companies or refusals to grant permission to banks or trust companies to relocate and, as well as, from actions of the Commissioner granting certificates of incorporation to proposed incorporators of banks and trust companies or permitting banks and trust companies to amend their articles of agreement in order to achieve relocation. Said statute imposes no restraints or limitations whatsoever on the scope of the State Banking Board’s review of specified matters coming before it on appeal from actions or refusals taken by the Commissioner; the Commissioner’s actions or refusals, as the case may be, flow from ex parte proceedings (Section 362.030, RSMo 1969, relative to the granting of certificates of incorporation and Section 362.325, RSMo 1969, relative to amendment of articles of agreement to permit relocation), and when properly lodged before the State Banking Board for review have no ring of finality and are not inviolable, even though supported by competent and substantial evidence, since the State Banking Board may substitute its own discretion and judgment in determining the facts in light of the applicable law and override any prior determination made by the Commissioner. Marshfield Community Bank v. State Banking Bd., 496 S.W.2d 17 (Mo.App.1973); and Section 361.094, supra. Ex parte actions or refusals of the Commissioner on appeal before the State Banking Board stand in complete deference to the latter’s determination since the Commissioner’s actions or refusals in no way inhibit, constrict, or limit the State Banking Board from substituting its own discretion and judgment (so long as compatible with statutory guidelines) in their resolution on appeal.

“Thus, in the administrative hierarchy involving appeals from specified actions and refusals of the Commissioner, the State Banking Board is statutorily clothed with an unfettered right to speak anew with finality at the administrative level regardless of any conflicting views the Commissioner might possess. In a very real and practical sense, so far as echelons of administrative review are concerned, the Commissioner is subordinate to the State Banking Board and it is the superior authority. This conclusion is bolstered not only by the judicially recognized broad power of review bestowed upon the State Banking Board by Section 361.094, supra (Marshfield Community Bank v. State Banking Board, supra), but, as well, by the provisions of subparagraph 4 of Section 361.095 (subparagraph 3 thereof containing the statutory language principally relied upon by the Commissioner) which provides: ‘The commissioner of finance shall act in accordance with any order of the state banking board made pursuant to section 361.094, but the order of the board shall be subject to judicial review as provided by law. Whether or not any review shall operate as a stay of the board’s order shall be determined by the board.’ This language bespeaks of the Commissioner’s subservience to the State Banking Board regarding specified matters reaching it on appeal, and, standing alone, manifests a legislative intent that the Commissioner ‘shall be deemed a party’ at any hearing before the State Banking Board provided in Section 361.094, supra, for the purpose of being bound by all orders rendered by the State Banking Board until such time, if any, said orders have been countermanded on judicial review. The key to those who have the right to seek ‘judicial review as provided by law’ from final orders handed down by the State Banking Board is found in Section 536.100 of the Administrative Procedure Act, Chapter 536, RSMo 1969. Pertinent portions of the referenced section provide that ‘[a]ny person who has exhausted all administrative remedies provided by law and who is aggrieved by a final decision in a contested case, whether such decision is affirmative or negative in form, shall be entitled to judicial review thereof, as provided in section 536.100 to 536.140, unless some other provision for judicial review is provided by statute; . . . ’. In clear and direct language the legislature appears to have spelled out two conditions precedent that must be met before a person has a right to place his grievance from an administrative decision into the stream of judicial review: (1) he must have exhausted all administrative remedies provided by law and (2) he must have been aggrieved by a final administrative decision. The former presupposes him to be a person who possessed some administrative remedy. What administrative remedy did the Commissioner possess to exhaust? The obvious answer is none. It is beyond logical comprehension to envision the Commissioner appealing his own decision or refusal to the State Banking Board. Under Section 536.100, supra, the Commissioner had no right to invoke judicial review of the State Banking Board’s decision at the circuit court level in the first instance, and this legal inability to do so stays with him throughout, even on appeal, since an appeal from the circuit court to the appellate court level is but the final step in the overall process of judicial review of decisions of administrative tribunals. With reference to appeals from the circuit court level to the appellate court level, subparagraph 6 of Section 536.140, RSMo 1969, also a part of the Administrative Procedure Act provides that ‘appeals may be taken from the judgment of the court as in other civil cases.’ The right of appeal in civil cases is governed by Section 512.020, RSMo 1969, which provides, inter alia, that ‘[a]ny party to a suit aggrieved by any judgment of any trial court in any civil cause from which an appeal is not prohibited by the constitution, nor clearly limited in special statutory proceedings, may take his appeal to a court having appellate jurisdiction . . . ’ from certain delineated orders and judgments.

“The Commissioner contends he is ‘aggrieved’ within the contemplation of Section 512.020, supra, by the judgment rendered by the Circuit Court of Cole County affirming the decision of the State Banking Board. Since he lacked standing to enter the stream of judicial review initially it is impossible to perceive how he can shake that disability after the Circuit Court of Cole County has spoken and now claim legal standing before this court to attack the judgment below. Since the judgment below affirmed the decision of the State Banking Board, the Commissioner stands in the anomalous position of a subordinate questioning the wisdom and propriety of a superior authority’s decision. It is inconceivable that the legislature, by employment of the language ‘the commissioner of finance shall be deemed a party’ at any hearing before the State Banking Board provided for in Section 361.094, supra, intended such an anomalous result. The Commissioner vies that such a result is manifested by the employed language, however incongruous the result, because the legislative intent heralded thereby was to clothe him with legal authority to affirmatively seek judicial review to protect the public’s interest in a healthy banking system in this state. With all due respect to the Commissioner, this is an audacious argument bereft of statutory or logical sustenance. In the matter of chartering and relocating banks and trust companies the legislature in its wisdom obviously saw fit to make the State Banking Board (Section 361.094, supra, and Marshfield Community Bank v. State Banking Board, supra), composed of five members with variable backgrounds and political allegiances (Section 361.097, RSMo 1969), ultimate guardian of the public’s interest at the administrative level as opposed to a single individual such as the Commissioner.

“A virtually unlimited number of persuasive arguments can be marshaled to support the sagacity of the general assembly in withholding authority from the Commissioner of Finance to affirmatively invoke judicial review of decisions of the State Banking Board at any level of the judicial process. The following are but a few of many. To permit the Commissioner to invoke judicial review would put him in the position of a subordinate administrative officer seeking to nullify the legislatively authorized action of a superior authority, the State Banking Board. Such would not be conducive to intradivisional harmony and accord and would serve only to invite dissension that would erode public confidence and continuity of administrative policy inevitably detrimental to the public interest. It seems obvious that one of the purposes behind establishment of the State Banking Board was to provide affected persons and entities outside the realm of the Division of Finance a forum for de novo administrative review of decisions and refusals of the Commissioner regarding certain specified matters. This purpose, unquestionably salutary, would be defeated if the Commissioner is permitted to attack or disregard a decision of the State Banking Board favorable to persons or entities who are strangers to the Division of Finance. Permitting the Commissioner to seek remedial review of decisions of the State Banking Board at the circuit court level, and failing there, at the appellate court level, would work havoc with the whole scheme of review, adminis-trativewise and judicialwise, promulgated by the general assembly with respect to the chartering and relocation of banks and trust companies since the State Banking Board is statutorily imbued with the prerogative of speaking with finality at the administrative level. Further, to permit such would do violence to the concept of administrative finality so far as applicable to successful private entities or persons whose prevailance at the final administrative level stood judicially unchallenged by opposing entities or persons from the private sector. Finally, to permit such would place the Commissioner in the intolerable position of vying with the State Banking Board as to whose point of view truly represents the official position of the Division of Finance as to what is deemed best for protection of the public’s interest in administration of the laws relative to the chartering and relocation of banks and trust companies at the administrative level.

“The Commissioner has cited numerous decisions in his brief from this and other jurisdictions in support of his claim that he is ‘aggrieved’ within the meaning of Sections 536.100 and 512.020, supra, and therefore possesses legal standing to maintain the present appeal. A careful analysis of them, in the order cited, reveals that his reliance upon them is misplaced.

“Dubinsky Brothers, Inc. v. Industrial Commission of Mo., 373 S.W.2d 9 (Mo.1963), holds that the Industrial Commission and the Division of Employment Security were ‘aggrieved’ and entitled to appeal from an adverse circuit court judgment, the effect of which would have depleted the general unemployment benefit fund, since they were charged with the protection of said fund. No legal parallel can be drawn between the status of the Industrial Commission and the Division of Employment Security in Dubinsky Brothers and the Commissioner in the present case.

“The relevant issue in In Re St. Joseph Lead Company, 352 S.W.2d 656 (Mo.1961), was whether St. Francois County was ‘ aggrieved’ by an order of the State Tax Commission reducing the assessed valuation of St. Joseph Lead Company’s property, thereby entitling the county to judicial review of the State Tax Commission’s order. In essence, the court held that the county was ‘aggrieved’ inasmuch as it stood to lose considerable tax revenue if the order of the State Tax Commission was permitted to stand. No comparable situation exists in the present case.

“State v. Donnelly, [365 Mo. 686] 285 S.W.2d 669 (Mo. banc 1956), factually involving earlier and quite different applicable law, basically presented the same question now before this court, i. e., whether the then Commissioner of Finance had legal standing to seek judicial review of a decision of the Board of Bank Appeals, the antecedent counterpart of the State Banking Board, which set aside an order of the then Commissioner refusing a certificate of incorporation to the proposed incorporators of a new bank and ordered him to grant the requested certificate of incorporation. As previously noted, the issue was subject to the banking laws in existence prior to extensive amendments made to them in 1955. When the case reached the Supreme Court it referred to present Section 361.095 (enacted in 1955), supra, more particularly that part providing that ‘commissioner of finance shall be deemed a party’ at any hearing before the State Banking Board provided for in Section 361.094, supra, as indicative that the legislature did not intend for the Commissioner of Finance under the previously existing and controlling statutory law to seek judicial review of decisions of the Board of Bank Appeals reversing initial decisions of his. Although certain dictum in Donnelly strongly implies that present Section 361.095, supra, vests the Commissioner with authority to seek judicial review, the court therein did not specifically so hold, because resolvement of the precise issue before it did not require it to do so. This court respectfully concludes that the dictum in Donnelly, concededly strong and shggestive, does not preclude it from judicially resolving this crucial and publicly important issue, where, as here, it is squarely presented in sharp focus on the basis of prevailing and applicable law. To do otherwise would be to shirk judicial responsibility-

“Only a perfunctory reference need be made to Central Bank of Clayton v. State Banking Bd. of Mo., 509 S.W.2d 175 (Mo.App.1974), since the Commissioner cites it for the sole purpose that the public has an interest ‘in a healthy bank system’.

“Cunningham v. Leimkuehler, 276 S.W.2d 633 (Mo.App.1955), and Shelley v. Missouri Commission for the Blind, 309 Mo. 612, 274 S.W. 688, 691 (banc 1925), cited by the Commissioner, involve situations where aggrieved private parties initiated judicial review at the circuit court level and upon achieving success, the administrative tribunals involved, which were the highest echelons in the administrative review process, appealed from circuit court judgments adverse to them. In both cases it was held on appeal that the respective administrative tribunals were ‘aggrieved’ by the respective circuit court judgments since they had an interest in vindicating and upholding their official acts. The Commissioner’s status here is in no way akin to the administrative tribunals in Cunningham and Shelley. No official act of the Commissioner is involved in the present appeal. His initial refusal to grant the applicant bank permission to amend its articles of incorporation in order to change its name and relocate ceased to have even the slightest semblance of an official act when the State Banking Board held otherwise in view of the latter’s broad and all inclusive power of review. The State Banking Board’s order completely dissipated the Commissioner’s act and for all practical purposes rendered it a nullity ab initio. The only official act involved in the judicial review before the Circuit Court of Cole County was that of the State Banking Board. By his appeal to this court the Commissioner seeks to upset the official act of the State Banking Board. He does not seek to uphold or vindicate the official act of the State Banking Board and no presently viable act on his own exists to be vindicated or upheld.

“In re Halifax Paper Company, Inc., [259 N.C. 589] 131 S.E.2d 441 (N.C.1963), Dixon v. Zoning Board of Appeals, [19 Conn.Sup. 349] 113 A.2d 606 (Conn.1955), Muench v. Public Service Commission, [261 Wis. 492] 53 N.W.2d 514 (Wisc.1952), Board of Adjustment of City of Fort Worth v. Stovall, [147 Tex. 366] 216 S.W.2d 171 (Tex.1949), Rommell v. Walsh, [127 Conn. 16] 15 A.2d 6 (Conn.1940), Board of Com’rs. v. Woodford Consol. School Dist. No. 36, [165 Okl. 227] 25 P.2d 1057 (Okla.1933), and Moode v. Board of County Com’rs., [43 Minn. 312] 45 N.W. 435 (Minn.1890), relied on by the Commissioner, have been carefully noted by this court. After doing so, it concludes that the statutory provisions and facts in each are so dissimilar to the statutory provisions and facts pervading the issue before this court that they lack persuasive force or directional assistance.

“In summation this court concludes that no statute expressly authorizes the Commissioner to invoke judicial review of orders of the State Banking Board at any judicial level and when the various statutory provisions heretofore cited which are in pari materia are collectively viewed no legislative intent to vest the Commissioner with such a right emerges. Although the effort of the Commissioner to seek judicial review of the judgment of the Circuit Court of Cole County is undoubtedly well intentioned and highly motivated there is no statutory or case law to countenance it and therefore this court holds that the Commissioner is devoid of legal standing to do so.

“Since the Commissioner, the sole appellant, lacks legal standing to maintain this appeal the judgment entered by the Circuit Court of Cole County in this cause must stand and, accordingly, said judgment is affirmed.”

The commissioner, before this court, continues to place heavy reliance upon the provision of section 361.095, subd. 3, RSMo 1969, which provides in part, “At any hearing provided for in section 361.094 the commissioner of finance shall be deemed a party, . . ” and the court’s language in State ex rel. Rouveyrol v. Donnelly, 365 Mo. 686, 285 S.W.2d 669 (banc 1956), which suggests that had such a provision been part of the law under which Donnelly was decided the court would have held the commissioner was entitled to petition for judicial review and thereafter appeal from the circuit court’s judgment.

The provision of section 361.095, subd. 3, quoted supra was not simply an amendment to an existing law but was part of H.B. 212, Sixty-eighth General Assembly (Laws of Mo.1955, p. 263), which established the state banking board as the board to hear appeals from certain decisions of the commissioner. H.B. 213 (Laws of Mo.1955, p. 266) abolished the former board of appeals which consisted of the governor, lieutenant governor, and the attorney general. The issue of standing to petition for judicial review under section 361.095, subd. 3, was not directly involved in State ex rel. Rouveyrol v. Donnelly, supra, but it is the issue in this case. A preliminary question is whether the 1955 act made any substantial change in the office of commissioner of finance vis-a-vis the board with respect to appeals taken from the commissioner’s orders.

Under the law prior to 1955, when these appeals were heard by a board of appeals, the commissioner was required to present all statements, reports, data and files, and any other information bearing on the subject to the board of appeals and thus was required to participate in the appeal before the board of appeals. Sec. 362.045, subd. 2, RSMo 1949 (repealed 1955).

Under the 1955 act the banking board continues to have access to all of the records and information used by the commission in making his decision, section 361.-094, RSMo 1969, and the commissioner is “deemed a party” to the hearing on such appeals, section 361.095, subd. 3, RSMo 1969, and thereby is still required to participate in the hearing of such appeals.

Under the law prior, to 1955, the commissioner was required to “act in accordance with such decision” of the board of appeals, section 362.045, subd. 3, RSMo 1949 (repealed 1955). Under the 1955 act the commissioner is required to “act in accordance with any order of the state banking board made pursuant to section 361.094 . . ”, section 361.095, subd. 4, RSMo 1969. Thus under the law prior to and subsequent to 1955 the commissioner has no discretion after the appeals tribunal has ruled. He was and is bound to abide by the decision of the appeals tribunal and there is no provision which makes an exception to this requirement nor which grants the commissioner the right to seek judicial review of that decision.

Under the law prior to 1955, the judicial review was governed by the provision of section 386.510, RSMo 1949. See section 362.045, subd. 3, RSMo 1949 (repealed 1955). Section 386.510 is the statute applicable to judicial review of public service commission orders.

Section 386.510, RSMo 1949, provided, inter alia, that, “The commission and each party to the action or proceeding before the commission shall have the right to appear in the review proceedings.” However, even though the commissioner was required to participate in the hearing before the old board of appeals and for that purpose may have been considered in some sense a party before that board, this court held he had no right to seek judicial review of the board’s decision. State ex rel. Rouveyrol v. Donnelly, supra.

The provision of section 361.095, subd. 3, supra, that the commissioner shall be “deemed a party” at hearings before the banking board provided for in section 361.-094, accomplishes the same purpose as the former provision of section 362.045, subd. 2, RSMo 1949 (repealed 1955), which required the commissioner to present all documents and other information on the subject in his possession to the old board of appeals. It also allows him to have subpoenas issued by the board in order to adequately present his position to the board in a formal hearing. This has the effect of getting all relevant information before the board in order that it can perform its duty of deciding the matter.

The initial decision of the commissioner is not subject to judicial review. His is merely the initial decision within the agency on the matter. The board’s hearing is fully de novo and the board need give no weight whatever to the decision of the commissioner. Standing to appeal to circuit court from the board’s decision is governed by section 536.100, RSMo 1969, and requires that the person (party) be aggrieved by the board’s decision.

The question of whether the commissioner of savings and loan in Wisconsin was an aggrieved party so as to seek judicial review of a decision of the savings and loan review board which reversed the commissioner’s decision was the issue in Mortensen v. Pyramid Sav. & L. Ass’n of Milwaukee, 53 Wis.2d 81, 191 N.W.2d 730 (1971). In Mortensen the trial court dismissed the commissioner’s petition for review from the review board’s decision on the ground that the commissioner is not a person aggrieved and directly affected by a decision of the review board. The Supreme Court of Wisconsin affirmed the trial court saying at 191 N.W.2d at 731-732:

“The basic reason for this interpretation of the statute is that the commissioner of savings and loan is a part of the decisional process of the savings and loan department and his decision only initially determines the issue in the administrative proceeding. An administrative officer is not a party for the purposes of seeking a review of a reversal of his determination by a board of appeals. See 2 Am.Jur., Administrative Law, p. 177, sec. 368. It is stated in 2 Am.Jur., Administrative Law, p. 397, sec. 576 ‘An administrative officer who made an original decision which was appealed to a higher administrative authority was held to have no interest as a party which would entitle him to appeal from the overruling of his decision.’ To the same effect is 73 C.J.S. Public Administrative Bodies and Procedures § 159, p. 497; Dept. of Labor v. Unemployment Comp. Bd. of Rev. (1949), 362 Pa. 342, 67 A.2d 114. Unless the statute expressly so provides, an aggrieved party is one outside the decisional process who is directly affected.

“But it is argued by the commissioner that because he alone has the legal responsibility to supervise the savings and loan industry and he is charged with the protection of public rights, these interests are sufficient to place him within the category of an aggrieved person directly affected by the decision of the savings and loan review board. While the commissioner has a personal interest in seeing his opinion affirmed, such interest does not constitute him as an official an aggrieved person. He relies on Muench v. Public Service Commission (1951), 261 Wis. 492, 53 N.W.2d 514, and Norway v. State Board of Health (1966), 32 Wis.2d 362, 145 N.W.2d 790. In Muench we held a citizen had sufficient legal interest in the use of navigable waters to challenge a public service commission’s decision; and in Norway, we held the town’s governmental right to prevent pollution was a sufficient basis to render the town an aggrieved person entitled to challenge an administrative agency’s sewerage treatment plan. But the important point is that in neither of these decisions was the citizen or the town a part of the decisional administrative process; they were bystanders, outside the decisional process.

“Nor is the commissioner the final authority of this department so as to give him a legal interest. The review board may review certain actions of the commissioner. While it is true that sec. 15.821, Stats., defining the review board’s responsibility does not list sec. 215.03(9) respecting an application for a branch, the review board may, contrary to the arguments of the commissioner, review such decision under sec. 215.04(4) by virtue of sec. 215.03(9)(c); and sec. 15.821(1) does give the review board jurisdiction of matters covered by sec. 215.-04.

“The commissioner’s decision in this matter is not final also because in reviewing the decision of the commissioner, the review board may substitute its judgment, although the findings of the commissioner are supported by substantial evidence. No statute limits the scope of review by the review board and without such limitation it may substitute its own judgment in determining the facts and the law applicable thereto. Prior to 1961 the savings and loan review board, then known as the advisory committee, reviewed the commissioner’s denials of applications for certificates of authority in the manner provided in sec. 220.-035, Stats., which requires the acceptance of factual findings which were supported by substantial evidence. However, the recreation of ch. 215 by ch. 315, Laws of 1963, made the review of denials of applications for certificates of authority reviewable under statutes which are now numbered 215.-04(1) and 215.04(4) and these sections do not provide the review board must give weight to the factual findings of the commissioner. Although this change involves only the specific duty of the commissioner in reference to applications for certificates of authority, the change makes the scope of review of this type of decision compatible with the broader review of other decisions of the commissioner.”

In Minn. Bd. of Health v. Gov., Etc., App. Bd., 230 N.W.2d 176 (Minn.1975), the issue was presented as to whether the state board of health was a “person aggrieved” so as to seek judicial review of a decision of the certificate of need appeal board which reversed the decision of the board of health. In the context of the instant case, the Minnesota board of health is comparable to our commissioner of finance and the governor’s certificate of need appeal board is comparable to the banking board of Missouri.

The Minnesota Supreme Court quoted with approval from Mortensen, supra, and held the Minnesota board of health was not a “person aggrieved” so as to have standing to seek judicial review. The reasoning of the Wisconsin Supreme Court in Mortensen and the Minnesota Supreme Court in Minn. Bd. of Health is sound and in accordance with the prevailing law on the subject. There are no cases cited in the commissioner’s brief nor has this court found any case where it was held that a person occupying a position similar to our commissioner of finance was an aggrieved party so as to give him standing to seek judicial review of the decision of the administrative board (banking board) which heard appeals from the initial decision of the commissioner.

The court holds that the commissioner of finance is not a person aggrieved by a decision of the banking board and therefore does not have standing to seek judicial review of the banking board’s decision. He lacks standing to maintain this appeal and therefore the judgment of the circuit court is affirmed.

MORGAN, HENLEY, DONNELLY, JJ., and HIGGINS, Special Judge, concur.

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

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

HOLMAN, J., not sitting.

PINCH, Judge

(dissenting).

I must respectfully dissent.

Sec. 361.094 provides that the state banking board shall hear and determine appeals from the commissioner of finance with reference to such matters as granting or refusing certificates of incorporation for proposed banks or permitting or denying requested relocations. In such hearings the board hears evidence and may substitute its own discretion and judgment in determining the matter on appeal. Sec. 361.095.3 provides that “At any hearing provided for in section 361.094 the commissioner of finance shall be deemed a party * * * ” and § 361.095.4 provides that “The commissioner of finance shall act in accordance with any order of the state banking board made pursuant to section 361.094, but the order of the board shall be subject to judicial review as provided by law”. The question we must resolve is whether, under the foregoing statutory provisions, the commissioner of finance has standing to seek review of a decision of the banking board as he did in this case.

The foregoing sections, subject to amendments adopted in 1967 which are not material to the question at issue, were enacted in 1955. Prior thereto, appeals from actions by the commissioner were to a board of appeals. The statute then provided that the board of appeals should have access to “any and all statements, reports, data and files in the office of the commissioner” and that he “shall present all such documents and any other information bearing on the subject, in his possession, to the board.” Sec. 362.045.2 RSMo 1949. It did not provide that the commissioner of finance should be a party to the proceedings before the board of appeals.

The foregoing provisions of Chapter 362 of RSMo 1949 were repealed in 1955. As previously noted, a new statute was enacted whereby a state banking board was created and appeals from decisions of the commissioner of finance were to be heard by said banking board. Sec. 361.095 specifically stated that at any such hearing before the banking board the commissioner should be deemed a party.

Shortly thereafter, this court decided State ex rel. Rouveyrol v. Donnelly, 365 Mo. 686, 285 S.W.2d 669 (banc 1956), a unanimous opinion authored by Judge Storckman. In that case, in construing the law as it existed prior to the 1955 changes, the court said “Nor is there any provision in the applicable statutes giving to the commissioner of finance any rights as a party after the board of appeals has obtained jurisdiction. * * * An administrative agency is not a part to a litigation as that term is customarily used and should not be so considered unless the legislature has so provided.” 285 S.W.2d at 677.

After so stating, the opinion then took note of the enactment of the new chapter in 1955, saying at 677-678:

“The legislative construction of the banking act confirms the conclusions which we have reached. The 68th General Assembly amended the banking laws to provide for an appeal board of five members to be appointed by the governor and further specifically provided that the commissioner of finance shall be deemed a party to an appeal proceeding before the board and that certain specified banks may intervene. Section 361.095, RSMo 1955 Supp., V.A.M.S., L.1955, H.B. 212, § 5. The fact of this amendment is ‘a significant factor’ and highly persuasive that the prior law did not contemplate that the commissioner of finance and the banks specified were parties to the proceedings or their review. State ex inf. Gentry v. Long-Bell Lumber Co., 321 Mo. 461, 12 S.W.2d 64, 80[5]. The specific provision of the amendment that the commissioner be deemed a party on appeal and that other banks be permitted to intervene is a legislative construction that the right did not exist under the law applicable to this case. State ex rel. Bank of Nashua v. Holt, 348 Mo. 982, 156 S.W.2d 708, 712[3]. This rule of construction was applied in the case of Drainage District No. 23 v. Hetlage, 231 Mo.App. 355, 102 S.W.2d 702, 709[8], wherein it was held: “We conclude, that from the legislative construction of article 1, cháp-ter 64 [Section 242.020 et seq. RSMo 1949, V.A.M.S.], as indicated by the subsequent amendment thereof, drainage districts organized under the provisions of said article 1, chapter 64, did not have the power to bring suit to redeem or to bid at tax sales for state and county taxes prior to this amendment, and that consequently, it enacted this statute for the purpose of expressly conferring such authority upon circuit court districts. While this legislative interpretation is not conclusive, it is highly persuasive.’ ” (Emphasis supplied.)

Clearly, the court was expressing the view that now certain specified banks could intervene and be parties and that they, together with the commissioner of finance, were for the first time parties to the proceedings on appeal. That was the interpretation of § 361.095 expressed by this court in Donnelly.

The principal opinion dismisses Donnelly as merely containing dicta, even though “concededly strong and suggestive”, and as not having ruled the question of the commissioner’s right as a party to appeal since the meaning of § 361.095 was not the issue in that case. It then goes on to adopt a construction of § 361.095 which says, in effect, that the commissioner’s rights are the same as in the statute repealed in 1955 and he has no standing as a party to appeal.

The interpretation of the statute expressed in Donnelly may not be dismissed or disregarded so casually as mere dicta. In Phillips Pipe Line Co. v. Brandstetter, 241 Mo.App. 1138, 263 S.W.2d 880 (1954), the court had before it the question of whether a statute authorized pipe line companies to institute condemnation proceedings. In holding that they did have such authority, the court pointed out that it was construing a statute enacted in 1919 and then said, at 884-885: “We * * * must take into consideration the comments which have been made by courts (conceding that none have ruled this precise issue), as well as the practical use made of the statute.” The court then noted four decisions containing dictum to the effect that the statute conferred on pipe line companies the power of eminent domain. Then, significantly, the court stated at 885:

“Thus on four distinct occasions in Missouri judicial comments have been made, although not directly necessary, to the effect that Section 523.010 RSMo 1949, V.A.M.S. has granted a substantive right of condemnation to pipe line companies. The earlier two of the four Missouri cases just cited are especially significant because after those opinions were published (in 1935 and 1940, respectively,) there was no effort, in any of the several sessions of the General Assembly subsequently convened, to amend the law or to express any other or different legislative intent, not in accord with said judicial dicta. See Willott v. Willott, 333 Mo. 896, 62 S.W.2d 1084, loe. cit. 1085-1086, 89 A.L.R. 114; Curtis Pub. Co. v. Bates, 363 Mo. 287, 250 S.W.2d 521; Robertson v. Manufacturing Lumbermen’s Underwriters, 346 Mo. 1103, 145 S.W.2d 134.” (Emphasis supplied.)

Twenty years have passed since this court in Donnelly expressed the view that the effect of newly enacted § 361.095 was to make the commissioner of finance a party to the appeal proceedings with right of appeal, thereby constituting a substantial change from the prior statute under which neither the commissioner nor certain specified banks which might be interested “were parties to the proceedings or their review”. As the court held in Phillips Pipe Line, this judicial dicta is significant, particularly in view of the fact that in the many legislative sessions intervening between 1956 and 1976, there has been no effort to amend the law so as to express a legislative intent not in accord with the interpretation expressed in Donnelly. See also City of St. Louis v. State Tax Commission, 524 S.W.2d 839, 845 (Mo. banc 1975).

Another matter of significance is the fact that in 1967 the legislature made some changes in § 361.095 but it reenacted without change the language whereby the commissioner of finance was made a party, i. e., the language construed in the dicta in Donnelly. This reinforced and reconfirmed the legislative acquiescence in the Donnelly interpretation of § 361.095. Such a view was expressed in State v. Schenk, 238 Mo. 429, 142 S.W. 263, 270 (1911), as follows:

We regard as significant the fact that notwithstanding the construction which has been put upon these laws by the decisions of this court referred to, by the acts of the various Governors making appointments, and by the certificates contained in the official publication of the session acts, the Legislature, in 1909, adopted the same phraseology in the declaratory act, and also in the general act concerning the time when laws should go into effect. According to the ordinary rules of construction, it must be held that the Legislature re-enacted these laws with the construction which had been so placed upon them. * * * ” (Emphasis supplied.)

In addition to the foregoing, it is well settled under the doctrine of contemporaneous construction that interpretation of a statute by those charged with its administration is entitled to great weight. L & R Distributing, Inc. v. Missouri Department of Revenue, 529 S.W.2d 375 (Mo.1975); State ex rel. Jackson County v. Public Service Commission, 532 S.W.2d 20 (Mo. banc 1975); Foremost-McKesson, Inc. v. Davis, 488 S.W .2d 193 (Mo. banc 1972). The commissioner of finance is charged with the administration of the statutes relating to the Department of Finance and to banks. Over the intervening years he has interpreted § 361.095 as making him a party to appeals from his decisions to the banking board and giving him standing to seek judicial review of decisions of the state banking board. For example, in Central Bank of Clayton v. State Banking Board of Mo., 509 S.W.2d 175 (Mo.App.1974), the commissioner of finance, after an investigation, issued a charter for a proposed new Central Bank of Clayton. Other banks appealed to the state banking board which conducted a hearing and then issued an order revoking the charter which the commissioner had issued. The commissioner and Central Bank appealed that decision to the circuit court. It affirmed the decision of the banking board to revoke the charter. Again, both Central Bank and the commissioner appealed the decision to the Missouri Court of Appeals, St. Louis District. In its opinion the court dealt with the issue of whether Central Bank was a “person” capable of being an aggrieved party which could seek review, but no question was ever raised as to the status of the commissioner as a proper party to the appeal by either the banking board or parties to the ease. Thus, the commissioner, charged with administration of Chapter 361, interpreted it as giving him the status of a party with the right of appeal as an aggrieved party.

Another example of such an interpretation of the statute appears in Mark Twain Cape Girardeau Bank v. State Banking Board, 528 S.W.2d 443 (Mo.App.1975), wherein the commissioner issued a charter for the proposed bank. On appeal by objecting banks, the banking board revoked the charter. The circuit court affirmed and an appeal was taken. The commissioner as well as the Mark Twain Bank are shown as parties to that appeal in the court of appeals and, of course, the commissioner necessarily was a party in the circuit court.

Again, in the instant case, the commissioner followed the interpretation of § 361-095 which he and his predecessors had consistently adopted and appealed from the decision of the banking board to the circuit court and thereafter took an appeal to the court of appeals. So far as I can ascertain, the motion filed by Pine Lawn Bank and Trust Co. in this case seeking to dismiss the commissioner’s appeal on the basis that he was not an aggrieved party and had no right to appeal is the first such instance since § 361.095 was enacted in 1955. On the basis of the interpretation of § 361.095 by this court in Donnelly, the legislative acquiescence therein for twenty years, the reenactment by the legislature of the identical language in 1967, long after the decision in Donnelly, and the interpretation of the statute over the years by the commissioner in appealing and participating in appeals from decisions of the banking board, I would hold that the commissioner of finance is a party in such proceedings and has a right to seek and participate in judicial review of decisions of the state banking board. Such interpretation is, in my judgment, a proper and correct interpretation of § 361.095.

The principal opinion holds that the commissioner has no interest in the outcome and cannot be an aggrieved party, but I cannot agree. He is charged with the administration of the State Division of Finance, including supervision of the banking industry, (§ 361.010) and in so doing, he represents the interests of the public. On such a basis this court in Dubinsky Brothers, Inc. v. Industrial Commission of Mo., 373 S.W.2d 9 (Mo. banc 1963), held that the Industrial Commission was permitted to appeal. See also Shelley v. Missouri Commission for the Blind, 309 Mo. 612, 274 S.W. 688 (banc 1925); Gwaltney v. Missouri Commission for the Blind, 322 Mo. 44, 14 S.W.2d 988 (1929); and In re St. Joseph Lead Co., 352 S.W.2d 656 (Mo.1961).

The principal opinion places considerable reliance on Mortensen v. Pyramid Sav. & Loan Ass’n of Milwaukee, 53 Wis.2d 81, 191 N.W.2d 730 (1971). However, that decision was based on the general philosophy that an administrative officer whose decision is appealed to and overruled by a higher administrative authority is not a party and has no interest as a party which would entitle him to appeal and seek judicial review of the decision of the higher administrative authority. It was not based upon an interpretation of the meaning and effect of a Wisconsin statute containing the language which appears in § 361.095. Instead, it provided only that “Any final order or determination of the review board shall be subject to review under ch. 227”. Sec. 215.-04(6) W.S.A.1963. That language was more nearly akin to what the Missouri statutes provided before the 1955 legislation.

Subsequent to the decision in Mortensen, the Wisconsin legislature amended § 215.-04(6) in order to make it unmistakably clear that it was intended that the commissioner, if reversed or modified by the review board, should be deemed an aggrieved party entitled to appeal. The Wisconsin legislature obviously was not shocked by the idea of the commissioner seeking judicial review of the decision of the review board (in Missouri, the state banking board) if it reverses his decision. On the contrary, it recognized the importance of allowing the commissioner to participate in appeals and to take appeals, if necessary. That, in my judgment, is what our legislature wisely did in 1955.

The principal opinion also places considerable reliance on the case of Minn. Bd. of Health v. Gov., Etc., App. Bd., 230 N.W.2d 176 (Minn.1975). I consider it to be inapplicable. In the first place, the Minnesota statute did not contain a provision such as § 361.095 making the Board of Health a party to proceedings before the Minnesota Appeal Board. In addition, the Minnesota Board of Health, unlike our commissioner of finance, acted only after notice and an opportunity to be heard. It is functioned in a quasi-judicial capacity, not ex parte as does our commissioner of finance. In my view, Minn. Bd. of Health provides no authority to support the result reached by the principal opinion herein.

I would hold that the commissioner is an aggrieved party in a contested case and that he is permitted to appeal. I do not reach the merits of the appeal because the principal opinion did not decide such questions.

      . The scope of judicial review is set forth in Section 536.140, RSMo 1969.

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

      . Laws 1967, p. 445, S.B. 1.

      . Laws 1955, p. 263, H.B. 212.

      . Laws 1967, p. 445, S.B. 1.

      . There can be instances in which the commissioner would be the only party to seek judicial review. For example, assume that a group seeks a bank charter in a small community and the commissioner concludes that a bank is not justified. The incorporators appeal and the banking board issues a charter. There are no objecting banks and unless the commissioner may appeal as an aggrieved party, there is no one to seek judicial review and thereby protect, if necessary, the interest in avoiding the chartering of banks which might not be economically justified.

      . It is of interest that Mortensen cited and relied on 2 Am.Jur.2d, Administrative Law, § 576 (1962), and that the language in said Am.Jur.2d section was, in turn, based upon the decision of this court in Donnelly which interpreted the pre-1955 statute. Obviously, Mor-tensen is not authority for construing present § 361.095.


source: Caselaw Access Project

author: DONNELLY, Judge. FINCH, Judge

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Michael Richard HOWARD, Appellant.
    No. 59353.
    Supreme Court of Missouri, En Banc.
    Sept. 13, 1976.
    John C. Danforth, Atty. Gen., Scott A. Raisher, and Charles L. Howard, Asst. Attys. Gen., Jefferson City, for respondent.
    James C. Jones, St. Louis, for appellant.
   DONNELLY, Judge.

Appellant, Michael Richard Howard, was convicted of rape under § 559.260, RSMo 1969, and of robbery in the first degree under § 560.120, RSMo 1969, in the Circuit Court of the City of St. Louis, and his punishment was assessed at ten years and five years, with the sentences to run consecutively. Following rendition of judgment and imposition of sentences, an appeal was perfected to the St. Louis District of the Court of Appeals. In that Court the conviction was affirmed but the cause was certified to this Court by a dissenting judge under Mo.Const. Art. V, § 10. We determine the cause the same as on original appeal. Mo.Const. Art. V, § 10.

Appellant asserts the trial judge erred when, in the presence of the jury, he commented on appellant’s “failure to testify.”

At the close of all the evidence, as the trial judge proceeded to read his instructions to the jury, the following transpired:

“MEMBERS OF THE JURY:
“The State of Missouri, by the Substitute Information in Lieu of Indictment, charges the defendant, Michael Richard Howard—
“THE DEFENDANT: My name is Michael Richmond Howard.
“THE COURT: I understand that. You indicated your name is Richmond.
“THE DEFENDANT: No, he said that.
“THE COURT: The papers indicate that the name is Michael Richard Howard.
“THE DEFENDANT: I’m going to be wrong—
“THE COURT: Now you were given the opportunity to take the stand. You’re going to keep quiet through these proceedings or you’re going to have to leave the courtroom.” (Emphasis ours.)

Appellant concedes that his assertion of error was not raised at trial and was not preserved in his motion for a new trial, but urges that he is entitled to relief by virtue of the provisions of Rule 27.20(c), which reads as follows:

“Plain errors affecting substantial rights may be considered on motion for new trial or on appeal, in the discretion of the court, though not raised in the trial court or preserved for review, or defectively raised or preserved, when the court deems that manifest injustice or miscarriage of injustice has resulted therefrom.”

In State v. Meiers, 412 S.W.2d 478, 480, 481 (Mo.1967), Division No. 1 of this Court said:

“ * * * Since its adoption we have invoked Rule 27.20(c) on a case to case basis to prevent ‘manifest injustice or miscarriage of justice,’ and we shall continue to do so where substantial rights are affected whether or not the error is ‘ * * * raised in the trial court or preserved for review, or defectively raised or preserved * * *.’ But there must be a sound, substantial manifestation (not perceivable here), a strong, clear showing, that injustice or miscarriage of justice will result if the rule is not invoked. We shall not invoke the rule in every case where it is claimed for the first time on appeal that this or similar state or federal constitutional rights have been violated, or for that matter, in every case where it may appear for the first time on appeal that such rights in fact have been violated.”

In State v. Ellifrits, 459 S.W.2d 293, 297 (1970), this Court en Banc said:

“Precedents are of little value in determining when relief should be granted under the plain error rule. And that is particularly true where, as here, no constitutional question is involved. * * * The rule to be followed is summarized in State v. Patterson, Mo.Sup., 443 S.W.2d 104, to the effect that we will review all the facts and circumstances in each case and determine on a case-to-case basis whether manifest injustice has resulted from the alleged error.”

It has been suggested that relief should always be given under Rule 27.20(c) when a “constitutional” error is involved. We do not agree. Even a federal constitutional error may be considered harmless. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). We will continue to “review all the facts and circumstances in each case and determine on a case-to-case basis whether manifest injustice has resulted from the alleged error.”

We have reviewed the whole record in this case and believe, under the facts and circumstances therein disclosed, that the trial judge’s comment, in the presence of the jury, resulted in manifest injustice.

We agree with counsel for appellant that the comment constituted a direct and certain reference to the failure of appellant to testify, and violated Art. I, § 19 of the Missouri Constitution and the Fifth and Fourteenth Amendments to the United States Constitution. State v. Shuls, 329 Mo. 245, 44 S.W.2d 94 (1931); Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965).

In addition, and more importantly in ruling the “plain error” question in this case, we believe the comment could have effectually shifted the burden of proof from the State to the appellant.

In State v. Malone, 327 Mo. 1217, 39 S.W.2d 786 (1931), this Court exhaustively reviewed the subject of burden of proof in a criminal case. The burden of proof is on the State throughout the trial to establish by evidence the guilt of the accused beyond a reasonable doubt.

We are of the opinion that the comment made by the trial judge, while in the process of instructing the jury, was prejudicially erroneous. Here, the jury could reasonably have understood the judge’s remark to mean that appellant was guilty because he declined “the opportunity to take the stand.” In these circumstances, it is reasonable to believe that the presumption of innocence of the accused was violated, that the jury could have understood that the burden of proving his innocence was on the accused, and that the accused was deprived of a fair and impartial trial. The historical significance of approving such a probable deprivation of rights compels us to hold that manifest injustice resulted here. (Cf. State v. Embry, 530 S.W.2d 401 (Mo.App.1975).)

The judgment is reversed and the cause remanded.

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

HOLMAN, J., dissents.

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

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

FINCH, Judge

(dissenting).

I must respectfully dissent.

After the evidence was concluded, the trial court was going to instruct the jury. Introductory thereto the court started to tell the jury just what defendant was charged with having done. It got only as far as giving defendant’s name when the defendant interrupted, saying that his middle name was Richmond instead of Richard. The court then observed that the papers in the case gave his name as Michael Richard Howard and defendant interrupted again. The court then said to the defendant: “Now you were given the opportunity to take the stand. You’re going to keep quiet through these proceedings or you’re going •to leave the courtroom.” The court then told the jury what defendant was charged with in Counts I and II after which it read the instructions to the jury.

This was not an instance wherein the court said to the jury, either expressly or by inference, that in determining guilt or innocence of defendant it could or should take into account his failure to take the witness stand and testify. The court was not saying that defendant had not given his version of the alleged robbery and rape and that his silence could or should be used against him. The court was not addressing the subject of guilt or innocence. Instead, the incident involved a dispute over defendant’s middle name. Defendant insisted on arguing the question and the court, in order to silence him and permit the instructions to be read, made the foregoing remark. It did not say to defendant or to the jury that defendant has remained mute and that can be used against him. It said only “Don’t interrupt. Be quiet. You could have explained earlier about your name but it is too late.”

I am unable to find in the foregoing any violation of the fifth or fourteenth amendments to the United States Constitution or Art. I, § 19, of the Missouri Constitution. I perceive no violation of § 546.270, RSMo 1969 or Rule 26.08(a), V.A.M.R.

The principal opinion cites and relies on Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965) and State v. Shuls, 329 Mo. 245, 44 S.W.2d 94 (1931). In my view neither case is at all comparable. In Griffin the trial court had instructed the jury specifically as to inferences which the jury could draw from defendant’s failure to testify. For example, the instruction included the following:

“As to any evidence or facts against him which the defendant can reasonably be expected to deny or explain because of facts within his knowledge, if he does not testify or if, though he does testify, he fails to deny or explain such evidence, the jury may take that failure into consideration as tending to indicate the truth of such evidence * * *.”

In Shuls the assistant prosecuting attorney in closing argument to the jury said: “Who was there at the hold-up, gentlemen of the jury? There were three parties there and these two girls were the only ones that testified * * *.” An objection by defendant’s counsel was overruled. On appeal this court held that this closing argument on whether to convict or acquit defendant constituted a clear reference to defendant’s failure to testify.

I have no quarrel with the decisions in Griffin and Shuls. I simply find them to be inapplicable to what happened here. A case more nearly in point is United States v. Warner, 428 F.2d 730 (8th Cir. 1970), wherein defendant was defending himself. At one point he was arguing with a witness and the attorney for the government objected. The trial judge then said: “I think you should ask questions. If you want to testify later on you may.” The court, after discussing numerous cases including Griffin, declined to reverse on the basis of the foregoing incident. In so ruling it pointed out that the comments of the judge were for the purpose of controlling courtroom procedure. That was true in this case.

In concluding to reverse herein under the “plain error” doctrine, the alleged error not having been preserved by objection at the time or by assignment in the motion for new trial, the principal opinion concludes that “the comment could have effectually shifted the burden of proof from the State to the appellant.” Again, I must respectfully disagree. The court at that time was not talking about the evidence in the case or whether defendant might be found guilty or not guilty. It was not addressing the burden of proof or even speaking to the jury. It was trying only to stop the interruption by defendant in order that the trial could proceed. What the court said concerned only a dispute as to defendant’s middle name and made no reference to burden of proof as to guilt and had nothing to do therewith. I am unable to see how it “could have effectually shifted the burden of proof from the State to the appellant”.

This conclusion is buttressed by the fact that the trial court immediately proceeded to read the instructions to the jury. Instruction No. 1 read as follows:

“You are further instructed that the Substitute Information in Lieu of Indictment contains the formal statement of the charge, but is not to be taken as any evidence of defendant’s guilt.
“The law presumes the defendant to be innocent and this presumption continues until it has been overcome by evidence which establishes defendant’s guilt beyond a reasonable doubt; and the burden of proving defendant’s guilt rests with the State.
“If, however, this presumption has been overcome by the evidence and the guilt of the defendant established beyond a reasonable doubt, your duty is to convict.
“If, upon consideration of all the evidence, you have a reasonable doubt of the defendant’s guilt, you should acquit, but a doubt to authorize an acquittal on that ground ought to be a substantial touching the defendant’s guilt and not a mere possibility of defendant’s innocence.
“You are further instructed that you are the sole judges of the credibility of the witnesses and of the weight to be given to their testimony. In determining such credibility and weight you may take into consideration the demeanor of the witness, his or her manner on the stand, his or her interest, if any, in the result of the trial, his or her relation to or feeling towards the defendant or any witness who has testified before you in this case, the probability or improbability of his or her statements, as well as all the facts and circumstances given in evidence.”

It specifically told the jury that the burden of proving defendant guilty beyond a reasonable doubt was on the State. Under such circumstances I find no basis for concluding that the jury was told that the burden of proof was on the defendant.

I would hold that the incident in question does not entitle defendant to a reversal under Rule 27.20(c), the “plain error” rule.

I have not considered other assignments asserted by defendant since they are not dealt with in the principal opinion;


author: RENDLEN, Judge.

text:
    STATE of Missouri, Plaintiff, v. James W. BOOKER, Defendant.
    No. 35979.
    Missouri Court of Appeals, St. Louis District, Division One.
    Aug. 10, 1976.

      Joseph W. Downey, Asst. Public Defender, William J. Shaw, Public Defender, Clayton, for defendant.
    John C. Danforth, Atty. Gen., Christopher R. Brewster, Preston, Dean, Asst. Attys. Gen., Jefferson City, Courtney Goodman, Jr., Pros. Atty., George R. Westfall, Asst. Pros. Atty., Clayton, for plaintiff.
   RENDLEN, Judge.

James W. Booker appeals his conviction of rape, § 559.260 and sentence of life imprisonment under the second offender act, § 556.280, the court having considered his prior convictions of burglary second degree, stealing and rape.

Defendant assigns as error: (1) his prior acquittal of burglary first degree and robbery first degree charges arising from the same transaction constitutes a bar to this trial for rape under the doctrine of collateral estoppel; (2) defendant’s acquittal of the burglary and robbery worked to preclude evidence of those crimes and erroneous admission of such testimony placed defendant “under double jeopardy”; and (3) permitting a former prosecutor’s testimony as to his personal belief of defendant’s guilt constituted reversible error. Sufficiency of the evidence supporting the verdict is not challenged.

On May 11, 1971 at approximately one p. m., Mrs. C— S— returned home from grocery shopping accompanied by her 2V2 year old son. While in the kitchen she heard a sound from the living room and going there, saw defendant holding a knife. He asked if anyone else was in the house. She told him her husband was in the basement to which defendant retorted she was lying, that he knew she was alone. He asked if she had any money; she replied in the negative and he again accused her of lying. She then told him the only money she had was in her purse in the bedroom, whereupon defendant forced her to the bedroom where he took a small amount of money from her purse. Then, threatening Mrs. S-and her infant son with the knife, defendant forced her to disrobe and acquiesce in a sexual assault in the presence of her son. Afterward defendant permitted Mrs. S— to dress and holding her son at knife point, ordered her to start her automobile for him. After she had done so and returned to the house, defendant took her wedding rings, threatened destruction of her home and family if she called the police and left in the car. Immediately she attempted to use the phone but finding the cord cut, went to a neighbor’s house and phoned the police, giving her assailant’s description. A few days later, defendant was arrested by the Wellston police and having first been given “Miranda” warnings, admitted the essential details of the crime. The testimony of arresting Officer Schwartz as to defendant’s confession, follows:

“A. And then he told me, he says, ‘yes’. He says that he was at the Tri-City Grocery Store there on Vernon, he had left there and walked north aways and turned down the street and he saw a woman get out of a car and she fascinated him.
Q. Now did he use the word ‘fascinated’ or is that your word?
A. That was his word.
Q. Go on.
A. And then he says he went up to the door and pulled on the door and the door. came open. The inner door was open, but the screen door was locked, and he pulled on that door, he went inside and told the woman he wanted to have intercourse with her, and she refused. He told her if he didn’t have intercourse with her he was going to beat her up. She said: ‘If you don’t harm my child, all right.’ And then he did. He said when he got finished he pulled the phone off, and told her to go out and get the car started. She went out and started the car. He came back in — she came back in, he got in the car and drove off.
Q. Did he ever mention the little boy being present?
A. Yes.
Q. What did he say about that?
A. He said the little boy was standing there with him.”

Defendant then directed the police to Mrs. S_’s home, pointing it out as the residence he had entered.

Mr. Noel Robyn, an assistant prosecuting attorney of St. Louis County, active in the first rape trial, testified that defendant, who took the stand in that trial, admitted (in testimony) he had seen Mrs. S_on the afternoon of May 11, 1971, that she was with a little boy and she “fascinated” appellant. He saw she had “a whole lot of groceries” so he “went up and asked her if [he] could help her carry the groceries in the house.” Defendant admitted having sexual intercourse with Mrs. S_ but insisted it was by consent, though in the presence of Mrs. S_’s infant son, stating further that he “borrowed” her car when he left.

The only defense witness called in this retrial of the rape charge was Mr. Brent Williams of the public defender’s office who represented defendant in the original trial of May 1971. Testifying from his recollection of that case, Mr. Williams conceded defendant had testified he was walking along the street on May 11, 1971, that he had a conversation with a woman, that he and the woman entered her house and thereafter had intercourse. Williams further testified that defendant admitted the presence of the little boy in the house. He also confirmed the matter of carrying the groceries in the house and remembered some conversation between Booker and Mrs. S_ about doing a favor “or something like this, to that effect,” and that the sexual intercourse was “the favor that she did for him.”

Following defendant’s 1971 rape conviction, he was tried and acquitted in November of 1972 on charges of burglary first degree and robbery first degree with a dangerous and deadly weapon, arising from the occurrences of May 11, 1971.

The rape conviction was reversed and remanded by the Missouri Court of Appeals, St. Louis District, on April 11,1973, because the court reporter’s notes were lost or destroyed preventing preparation of a transcript. In May of that year defendant moved to dismiss the rape charge alleging that the primary disputed issue in the 1972 burglary and robbery trial had been Mrs. S_⅛ identification of defendant as her assailant, barring retrial on the charge of rape under the doctrine of collateral estop-pel.

Considering defendant’s first contention of error, it is well-settled that the fifth amendment’s double jeopardy clause includes by judicial interpretation the principle of collateral estoppel. A criminal defendant may not be convicted on the basis of an issue of ultimate fact which has been favorably determined for him in a prior criminal proceeding. Ashe v. Swensen, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). In Ashe the court ruled that where a general verdict was reached in the previous case a court must examine the record, pleadings, evidence, charges and other pertinent matters of the prior proceeding to determine “ ‘whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.’ The inquiry ‘must be set in a practical frame and viewed with an eye to all of the circumstances of the proceedings.’ ” Ashe, supra 397 U.S. at 444, 90 S.Ct. at 1194. There six poker players were robbed by three (or four) masked men and defendant was charged with the robbery of one of the players. In that trial no real challenge was made to the evidence of the fact of robbery and its several elements. Cross-examination was brief and directed primarily to defendant’s identification as one of the robbers. After acquittal the same defendant was charged with the robbery of a second player and retried on essentially the same evidence except for the markedly improved testimony of identification witnesses. The Supreme Court held that identification was the issue on which the first case turned, there being no real challenge to the other elements of the crime, and that the collateral estoppel effectively barred subsequent prosecutions of this defendant arising from the same robbery.

However to establish that the present prosecution is barred by the 1972 burglary and robbery acquittal, “the burden is on the appellant to show that the verdict there necessarily decided the issues now in litigation.” United States v. Tramunti, 500 F.2d 1334, 1346[21] (2d Cir. 1974) cert. denied 419 U.S. 1079, 95 S.Ct. 667, 42 L.Ed.2d 673 (1974). In that case the court, referring to United States v. Cioffi, 487 F.2d 492, 498 (2d Cir. 1973), stated: “Since it is usually impossible to determine with any precision upon what basis the jury reached a verdict in a criminal case, it is a rare situation in which the collateral estoppel defense will be available to a defendant.” Tramunti, supra at 1346[22]. In Tramunti, as in the case at bar, defendant failed to establish such situation existed. Here a single individual was separately charged with dissimilar crimes each having distinct factual elements not common to the others. That the crimes involved a single victim, time and place is not controlling.

To fully review the factual basis for the issue, we ordered a transcript prepared of the burglary and robbery trial. We have examined the pleadings, cross-examination, closing arguments, jury instructions and all matters of record as mandated by the Supreme Court to determine if identification was the primary issue upon which the jury could rationally have acquitted defendant. In the burglary charge the forcible breaking and entering with felonious intent were elements (unrelated to the rape) vigorously contested in the evidence, argued by counsel and called to the jury’s attention by appropriate instructions of the court. From this we conclude a rational jury could have grounded its verdict upon those issues precluding the availability of collateral estop-pel stemming from that count.

In the robbery as well as the burglary count the identification issue was contested but much was made of other issues. Elements of robbery first degree with a dangerous and deadly weapon submitted by the instructions, not appearing in the crime of rape, included the felonious taking and stealing $4 in currency and two wedding rings. This totally unrelated element was a subject of real controversy in the case. The prosecutrix testified that only $1 was taken while the information stated and instructions required a finding that $4 was stolen. In robbery the specific intent to steal property is distinct from the specific intent to forcibly rape and ravish. That the property taken must belong to the victim is an element not involved in rape. The jury could have acquitted for disbelief of any of the foregoing and from our review of the entire record, we cannot say the jury necessarily grounded its verdict upon a finding that defendant was not the person committing the acts alleged in the information. See also State v. Johnson, 504 S.W.2d 23, 27[3] (Mo.1973); State v. Vonderau, 438 S.W.2d 271, 274[3] (Mo.banc 1969). Defendant’s first point is denied.

Defendant next contends it was error to admit C_S_⅛ testimony concerning events giving rise to the charges burglary and robbery as defendant had been acquitted of those charges. A similar contention was considered in State v. Cooksey, 499 S.W.2d 485, 488 (Mo.1973), in which the Missouri Supreme Court held the collateral estoppel doctrine of Ashe “does not speak to the question of the admissibility of evidence; it speaks only to the question of double jeopardy.” Defendant’s point is without merit.

The third point on appeal evolves from the following testimony on redirect examination of Nr. Noel Robyn who prosecuted defendant in the burglary and robbery trial:

“Q. Why did you tell Mr. Booker that you wanted to do all in your power to see he was convicted?
A. Because I felt in my mind and in my heart that Booker was guilty.”

It is argued this constitutes a statement of the prosecutor’s personal opinion often condemned by our courts. State v. Moore, 428 S.W.2d 563, 565[4] (Mo.1968). Yet defendant’s request for mistrial was denied. The transcript reveals the question and answer was part of an effort to rehabilitate the witness. During the cross-examination of Mr. Robyn, it was developed that he had had a conversation with defendant in the presence of defendant’s counsel before the burglary and robbery trial. He was then asked: “Q. Did you tell him at that time that you would do everything you could to get him convicted? A. Right, right; I did.”

“In general, a witness may testify on redirect examination as to his reasons for his statements on cross-examination, or for his prior statements . . . brought out on cross-examination.” 98 C.J.S. Witnesses § 421, p. 228; State v. Williams, 448 S.W.2d 865, 868-9[6, 7] (Mo.1970); State v. Griffin, 497 S.W.2d 133, 135-6[2, 3] (Mo.1973). Further, mistrial was the only relief requested and it has long been recognized that “declaration of a mistrial is a drastic remedy which should be exercised only where the prejudicial effect can be removed no other way . . This determination rests largely with the trial judge who observed the incident and can best judge the prejudicial effect upon the jury . . . ” State v. Wilborn, 525 S.W.2d 87, 96[9, 10] (Mo.App.1975); “an appellate court will not interfere unless the record shows an abuse of such discretion . . . ” State v. Connell, 523 S.W.2d 132, 137[13] (Mo.App.1975).

In light of the fact that Robyn was a witness and not a prosecutor in the case at bar and because the challenged testimony was part of a legitimate effort to rehabilitate an impeached witness, we cannot say that the trial court abused its discretion refusing a mistrial.

The judgment is affirmed.

WEIER, P. J., and DOWD, J., concur.

      . All statutes referred to in this opinion are RSMo 1969, V.A.M.S., unless otherwise noted.

      . See State v. Booker, 517 S.W.2d 937, 941 (Mo.App.1975), where this matter is discussed in an appeal affirming a subsequent sodomy conviction of Willis James Booker.

      . The State vigorously argued, perhaps with merit, that defendant failed to properly raise the issue of collateral estoppel or establish a reasonable basis for preparation and examination of the robbery-burglary trial transcript, but to fairly decide the issues, the record was procured.


text:
    STATE of Missouri, Respondent, v. Merle Clay WISDOM, Appellant.
    No. 36670.
    Missouri Court of Appeals, St. Louis District, Division One.
    June 29, 1976.
    Motion for Rehearing or Transfer Denied Aug. 18, 1976.

      Charles D. Kitchin, Public Defender, Neal P. Murphy, James C. Jones, Asst. Public Defenders, St. Louis, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Timothy J. Verhagen, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., St. Louis, for respondent.
   RENDLEN, Judge.

Merle Clay Wisdom appeals his conviction of murder in the first degree, § 559.010 RSMo 1969, V.A.M.S., and sentence of life imprisonment, contending the trial court erred: (1) by overruling his motion to suppress a confession and failing to find with unmistakable clarity it was voluntarily made; (2) by admitting the confession in view of evidence that appellant was intoxicated and incapable of intelligent waiver of his rights; and (3) by admitting photographic evidence depicting the body of the victim. Sufficiency of the evidence is not challenged.

On August 11,1974, Stella Hammond, the victim’s mother, was living with appellant (nicknamed Bud) on West Quincy in the City of St. Louis. Their three-room house included a living room, bedroom and a kitchen reached from the front of the house through the bedroom. At approximately 4 p. m. that day, as Mrs. Hammond and appellant sat watching television, Leroy Hammond came to the house and Mrs. Hammond prepared lunch which he ate in the kitchen. Appellant left the house and returned a few minutes later stating that he had had a drink. He watched television briefly then went to the kitchen where Mrs. Hammond heard her son cry out, “Bud, no Bud,” followed by the sound of two shots. She ran to the kitchen and saw her son lying back in his chair while appellant stood six or eight feet distant holding a gun usually kept in the bedroom. Appellant put the gun in his pocket and left, whereupon Mrs. Hammond summoned the police.

Arrested in a bar in St. Louis County approximately thirty minutes after the shooting, appellant was delivered at 8:30 that evening to the custody of the City Police to whom he admitted the killing, having first been advised of his rights. Approximately one-half hour later at City Police Headquarters, appellant again was advised of his rights and made a detailed statement of the crime. Appellant claims to have been intoxicated when making the confessions and moved for their suppression at trial. The court on full hearing overruled the motion. Initial review of the transcript disclosed the findings and order of the trial court failed to show with unmistakable clarity the confessions were voluntary as required by Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964); and Sims v. Georgia, 385 U.S. 538, 87 S.Ct. 639, 17 L.Ed.2d 593 (1967). Accordingly, we ordered the trial court to conduct further hearing and make express findings on the issue of voluntariness of the confessions, State v. Bridges, 491 S.W.2d 543, 545[2] (Mo.1973); State v. Glenn, 429 S.W.2d 225, 237[29, 30] (Mo.banc 1968). The hearing was held with appellant and counsel for the defense and the State present. Arguments were heard but no new evidence offered. The court found the confessions had been made voluntarily and “with complete understanding of the nature and consequences of the statements,” rendering moot appellant’s first contention of error.

We now turn to the question of whether appellant was intoxicated so as to render him incapable of a voluntary and rational waiver of his rights.

It is generally agreed that intoxication at the time of making a statement or confession which is less than “mania” does not “require that the statement be excluded because it is involuntary or not made knowingly and intelligently. Rather, the fact of intoxication goes to the weight and credibility to be accorded the statement.” State v. Heather, 498 S.W.2d 300, 304[5] (Mo.App.1973). It was noted in Heather, supra at 305, that the trial court “found that while defendant had been drinking and was affected by alcohol, his faculties were not so impaired that he could not understand, and concluded that the defendant validly waived his constitutional rights as specified in Miranda v. Arizona.” While the burden is on the State to demonstrate the accused knowingly and voluntarily waived his privilege against self-incrimination and right to counsel, this burden does not require the State to negative every possible circumstance which might raise an issue of fact as to the voluntariness of the statement or confession. “The standard is whether the statement is reliable and whether there is such a lack of awareness or understanding so that in the rare case where it clearly appears, the defendant was so intoxicated so as to be ‘unable to appreciate the nature and consequences of his statements.’ ” Heather, supra at 304. In such case the defendant would be incapable of knowingly and intelligently waiving his constitutional rights.

Our Supreme Court has stated: “The fact that accused was more or less intoxicated when he confessed does not exclude the confession if he had sufficient mental capacity to know what he was saying . However, the fact of intoxication may be considered by the jury as lessening the weight of the confession.” State v. Smith, 342 S.W.2d 940, 941-2[3] (Mo.1961).

Three police officers testified at the hearing on the motion to suppress. The first, a county police officer who arrested appellant at 5:30 p. m., one-half hour after the shooting, in a St. Louis County bar explained that appellant was advised of his “Miranda” rights, and indicated he understood them. He stated that while appellant had a drink before him when arrested, the officer did not notice the smell of alcohol on his breath. Appellant staggered when he walked but this difficulty apparently stemmed from a physical disability. There was no indication that appellant did not understand the questions asked though he repeated several times that he was under medication. The officer stated that if he had stopped appellant on the highway he would not have arrested him for drunken driving.

The next to testify was the city police officer who took appellant to City Police Headquarters at about 8:30 p. m. He too advised appellant of his rights and appellant admitted the shooting. This officer, also present at the 5:30 p. m. arrest, did not detect the smell of alcohol but noticed appellant’s difficulty walking. In his opinion appellant was not under the influence of alcohol.

A third officer testified he had taken appellant’s statement at City Police Headquarters at 9 p. m. after appellant had again been informed of his rights and that appellant’s speech was clear and concise.

Appellant testified he had between five and ten “boilermakers” at the tavern and had taken some diabetic medicine. Though he remembered being arrested and advised of his rights, he did not remember making any of the statements attributed to him or any of the later interrogation.

Aside from appellant’s self-serving statements the overwhelming weight of the evidence supports the trial court’s finding that appellant knowingly and intelligently waived his rights by voluntarily making a full statement. While appellant may have consumed some intoxicants, he demonstrated an ability to understand and answer questions and rationally waive his right to remain silent. The court did not err admitting appellant’s statements into evidence.

The final contention of error concerns admission of a black and white photograph taken at the morgue showing the upper portion of deceased’s body and location of the wound. It is clear that “admission of a photograph of the body of the deceased in a homicide prosecution rests within the sound discretion of the trial court.” State v. Stevens, 467 S.W.2d 10, 24[16] (Mo.1971), cert. den. 404 U.S. 994, 92 S.Ct. 531, 30 L.Ed.2d 546 (1971); State v. Brown, 524 S.W.2d 188, 190[7] (Mo.App.1975); State v. Wintjen, 522 S.W.2d 628, 630[4] (Mo.App.1975).

It has generally been held that even though a photograph may be inflammatory it is admissible if it tends to prove any material element of the State’s case; this includes the issues of identity, condition and location of the body, nature or location of wounds, and the cause of death; and, generally, if the photograph corroborates the oral testimony of the state or refutes defense testimony it is admissible, (citing cases) And a photo is not made inadmissible because the oral testimony may have described what is shown in the photo ... if the photo is relevant, it is not excluded because it may be inflammatory, unless the situation is so unusual that the extent of prejudice overrides the relevancy and probative value of the photo. State v. Jackson, 499 S.W.2d 467, 472[6-8] (Mo.1973).

The picture was Levant to the identity issue, the nature and location of wounds, and the cause of death. We find no abuse of discretion. The judgment is affirmed.

WEIER, P. J., and DOWD, J., concur.

      . 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


author: McMILLIAN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Gary William THOMAS, Defendant-Appellant.
    No. 36843.
    Missouri Court of Appeals, St. Louis District, Division One.
    June 29, 1976.
    Rehearing Denied Aug. 18, 1976.

      Riezman & Blitz, Robert D. Blitz, Clayton, for defendant-appellant.
    John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blaekmar, Sp. Asst. Atty. Gen., St. Louis, for plaintiff-respondent.
   McMILLIAN, Judge.

Defendant appeals from two judgments of conviction, one for common assault and the other for kidnapping, and sentences of six (6) months incarceration in the workhouse and two (2) years imprisonment in the penitentiarv, respectively. The sentence imposed for common assault is to commence at the expiration of the two year sentence imposed for kidnapping.

For reversal, defendant argues that the court committed error in admitting into evidence, over objections that they were hearsay and irrelevant, statements of his alibi witness that her son had been arrested at the same time as the defendant. We affirm.

In this case the victim described both her assault and assailant to the police and also the other person who aided and abetted him. Three days after the abduction and assault, the victim saw and recognized defendant and Raymond L. Hearn at the Crestwood Shopping Center. She contacted store security, which called the Crestwood police. Both subjects were taken into custody, driven to the Second District Police Station, and identified by the victim.

Defendant offered alibi as his defense. One of his alibi witnesses, Mrs. Cornelia Hearn, mother of Raymond, testified that defendant was at her home during the time the victim stated the crime was committed. She remembers the date because of a big snowfall.

On cross-examination, the prosecutor asked if her son Raymond was arrested three nights later. The purpose of the inquiry was to determine if the snowfall that the witness had testified to was the same one which had taken place before her son and the defendant had been taken into custody. She recalled the incident and admitted that she had been called to the Second District Police Station.

Defendant objected to this line of inquiry contending that the question as to the witness’s son’s arrest was hearsay and irrelevant. In support of his contentions, defendant refers us to State v. Robinson, 484 S.W.2d 186, 189 (Mo.1972) (hearsay testimony), and State v. Walden, 490 S.W.2d 391, 393 (Mo.App.1973) (irrelevant testimony), but neither case found the admission of the evidence to be prejudicial. While we agree with the proposition of law set forth in each opinion, we find both inappropriate in the instant case.

In any event, an exhaustive examination of defendant’s contentions is unnecessary. First, we note that defendant failed to properly preserve the point for review since his objection came after the witness had answered and he failed to request that the answer be stricken, State v. Johnson, 349 Mo. 910, 163 S.W.2d 780, 783 (1942) and State v. Owen, 258 S.W.2d 662, 666 (Mo.1953). Secondly, even if the defendant’s contention is correct, which we doubt, the testimony by his alibi witness was not prejudicial, because evidence of the same import had previously been introduced without any objection. The victim and the police officer had given substantially the same evidence; hence, Mrs. Hearn’s testimony was merely cumulative. State v. Mills, 521 S.W.2d 495, 497 (Mo.App.1975) and State v. Williams, 448 S.W.2d 865, 869 (Mo.1970). Finally, the question asked of Mrs. Hearn about her son’s arrest was relevant to her interest and bias as it tended to disclose a motive to disregard the truth. See State v. Gyngard, 333 S.W.2d 73, 78 (Mo.1960) and State v. Williams, 513 S.W.2d 718, 721 (Mo.App.1974). Therefore, we reject defendant’s claim of error.

Judgment affirmed.

WEIER, P. J., and RENDLEN, J., concur.


author: SMITH, Chief Judge.

text:
    STATE of Missouri, Respondent, v. Bennie CRUSBY, Appellant.
    No. 36742.
    Missouri Court of Appeals, St. Louis District, Division Four.
    June 29, 1976.
    Motion for Rehearing or Transfer Denied Aug. 18, 1976.
    John C. Danforth, Atty. Gen., Preston Dean, Chief Counsel, Criminal Asst. Atty. Gen., Jefferson City, J. Brendan Ryan, Circuit Atty., Richard G. Callahan, Asst. Circuit Atty., St. Louis, for respondent.
    Charles D. Kitchin, Public Defender, Kent W. Fanning, James C. Jones, Asst. Public Defenders, St. Louis, for appellant.
   SMITH, Chief Judge.

Defendant appeals from his conviction by a jury of attempted burglary and the resultant four years sentence. Defendant challenges the sufficiency of the evidence to support the verdict.

No contention is made that the evidence produced was insufficient to establish an attempt to burglarize the Gervich Furniture Store in St. Louis. The challenge relates to defendant’s participation in the attempt. The rear door of the store was pried open, setting off a burglar alarm at about 5 a. m. A crowbar was found near the door. Officer Bowman arrived at the scene while the alarm was sounding. He observed two men run from a position within five feet of the door out into an alley where they saw Bowman. They then ran but were apprehended within a minute or two by other officers. Officer Wight saw two men matching the description given by Officer Bowman running together in the next block. Officer Bequette, in his vehicle, saw the two men running toward him, skidded his ear between them causing them to go in different directions. He pursued defendant on foot, fired a warning shot and eventually overtook and captured defendant. The other man was captured almost simultaneously by another officer. The clothing of defendant and the other man, Steven Wright, matched the clothing described by Officer Bowman. Defendant was identified by Officer Bowman as one of the men he saw near the door of the store.

Despite five prior felony convictions, defendant testified. He stated that his truck had become disabled near the furniture store at midnight. He had left it and then returned to it at about 5 a. m. and was working on his truck near the rear entrance to the furniture store. He heard no burglar alarm and first became aware of anything happening when a policeman pulled up in a police ear and immediately fired a shot. Defendant ran and was captured. He ran because he was afraid of being shot and because he had a criminal record. He did not see anyone else running and did not know Steven Wright. Officer Bowman had placed defendant, when he first saw him, at a location quite near the rear door, not next to the truck.

We find the evidence sufficient to support the verdict. While defendant relies heavily upon State v. Castaldi, 386 S.W.2d 392 (Mo.1965) we do not find this case comparable factually. There defendant was standing in the vicinity of a crime without any indication of participation and with no evidence that he knew a crime was being committed. His leaving the area was described by the Court as “possibly flight” but equally explainable as simply his only way to get out of the woods back to St. Louis. All that was present to support the verdict was presence, suspicious circumstances and “possibly flight”. We find more here. Two men, including defendant, are seen coming from the immediate area of a pried-in door at 5 a. m. while a burglar alarm is sounding. They see a police officer and run away together until split apart by a police car coming between them. Both are immediately thereafter captured. The evidence is sufficient to support the verdict.

Defendant further contends that the trial court erroneously admitted evidence showing the low percentage of times that soil samples and wood chip fragments have affirmatively established identifications. It is contended this testimony, by an expert, was irrelevant. It was not. Defendant had sought to create an inference that the negative results of those tests in this case supported his claim of innocence. It is permissible for the State to elicit testimony to explain the negative results. See State v. Dethrow, 510 S.W.2d 207[5, 6] (Mo.App.1974). We do not find an abuse of discretion in permitting the testimony. State v. Tevis, 340 S.W.2d 415[10-13], (Mo.App.1960).

Judgment affirmed.

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

      . We find State v. Eye, 492 S.W.2d 166 (Mo.App.1973) equally distinguishable.