author: HENLEY, Judge. SEILER, Judge

text:
    STATE of Missouri ex inf. John C. DANFORTH, Attorney General, Relator, v. James J. BUTLER, Respondent.
    No. 58941.
    Supreme Court of Missouri, En Banc.
    June 9, 1975.

      John C. Danforth, Atty. Gen., Walter W. Nowotny, Jr., Andrew Rothschild, Asst. At-tys. Gen., Jefferson City, for relator.
    Donald G. Stubbs, Stubbs, Epstein & Mann, Kansas City, for respondent.
    John R. Hopkins, Jr., W. Clifton Banta, Jr., Banta, Banta & Hopkins, Charleston, for W. C. Banta, John M. Morris, Jr., Jack Webster and Harvey B. Young, Jr.
   HENLEY, Judge.

This is an original proceeding in quo war-ranto by the State, on the information of the attorney general (relator), to oust James J. Butler (respondent) from the office of member of the labor and industrial relations commission.

It is agreed that pursuant to the authority of § 286.010 respondent was appointed a member and chairman of the industrial commission of Missouri by the then governor, Warren E. Hearnes, in June, 1971, for a term ending July 1, 1976, by and with the advice and consent of the senate, and that he qualified, assumed his duties, and thereafter acted as such chairman.

The question presented is whether respondent has authority to continue in that office for the balance of the term for which he was appointed. He claims that he does.

Relator contends that a 1972 amendment to Article IV of the constitution, V.A.M.S., and implementing legislation adopted in 1974 created a new department of labor and industrial relations and a new commission bearing that name; that since there is no authority in the constitutional amendment for members of the industrial commission to succeed to membership on the new commission the offices thereof were vacant upon creation; that the provision in the implementing legislation that members of the industrial commission succeed to membership on the labor and industrial relations commission is unconstitutional, because it conflicts with the appointive power of the governor granted in §§ 17 and 49 of amended Article IV. He also contends that it was the intent of the amendment and the implementing legislation to, and that they did clearly, abolish the industrial commission and with it the office held by respondent. Respondent, of course, contends otherwise.

In August, 1972, a proposed amendment to the state constitution providing for the organization of the executive branch was submitted to and adopted by the people. By this amendment § 12 and seven other sections of Article IV were repealed and seventeen new sections were enacted in lieu thereof, among which were §§12 and 49.

The first extraordinary session of the 77th General Assembly implemented this amendment by the adoption of the Omnibus State Reorganization Act of 1974 (hereinafter reorganization act), effective May 2, 1974.

Section 12 of Article IV, as amended, provides that in addition to the governor and other elective state officers in the executive branch there shall be an office of administration and thirteen named departments. Several of these departments, including the department of labor and industrial relations, were in existence before the adoption of amended § 12, having been created by statute pursuant to the authority of § 12, Article IV, as it existed prior to the 1972 amendment. The last two sentences in amended § 12 read: “Unless discontinued all present or future boards, bureaus, commissions and other agencies of the state exercising administrative or executive authority shall be assigned by law or by the governor as provided by law to the office of administration or to one of the fourteen administrative departments to which their respective powers and duties are germane. The departments enumerated in this section shall be established on July 1, 1974, as successors to the departments in existence at the time of the adoption of this section; except that they may be established by law prior to that date.”

As indicated, the 77th General Assembly, pursuant to authority of the amendment, established by law prior to July 1, 1974, the department of labor and industrial relations as the successor to the department of the same name in existence at the time of the adoption of the amendment.

Section 286.010, under which respondent was appointed in 1971, provides that “ ‘The Department of Labor and Industrial Relations’ * * * shall be under the control, management and supervision of a commission to be known and designated as ‘The Industrial Commission of Missouri.’ ” That section, in addition to creating and establishing the named department and the “industrial commission,” also provides, inter alia, the number and qualifications of the members of the commission, and for their appointment by the governor with the advice and consent of the senate.

Section 49 of Article IV, also adopted in the 1972 amendment, provides that “[t]he department of labor and industrial relations shall be in charge of a Labor and Industrial Relations Commission.” In addition, § 49, as amended, using substantially the same language as § 286.010, provides, inter alia, the same number of commissioners and, with one exception, the same qualifications as § 286.010. The last sentence in § 49 reads: “The labor and industrial [relations] commission shall be the successor to the industrial commission and the terms of members shall be as provided by law for the industrial commission.”

By § 8 of the reorganization act (effective May 2, 1974) the legislature, in subsection 1, “created a department of labor and industrial relations to be headed by a labor and industrial relations commission as provided by section 49, article IV Constitution of Missouri.” This subsection provides, inter alia, that (1) “All the powers, duties and functions of the industrial commission are transferred * * * to the labor and industrial relations commission and the industrial commission is abolished * * * ”; and (2) “Members of the industrial commission on the effective date of this act shall become members of the labor and industrial relations commission and the terms of the labor and industrial relations commission members shall be the same as provided by law for the industrial commission. Individuals appointed as members of the industrial commission shall serve the remainder of the term to which they were appointed as members of the labor and industrial relations commission.”

In the process of reorganization of the executive branch, the department of labor and industrial relations was structured as follows: (1) the division of employment security and the division of workmen’s compensation were retained as such in the department; (2) the division of industrial inspection and the division of mine inspection were retained also, but were reduced from division status and transferred to a newly-created inspection section of the department; (3) the board of rehabilitation (previously created by § 287.141 as an auxiliary to the workmen’s compensation division) was abolished and its duties and functions assigned to the director of the division of workmen’s compensation; and (4) the state board of mediation (created by chapter 295) and the commission on the status of women (created by chapter 186), not previously assigned by law as part of any department, were transferred to this department.

The ultimate question for decision is whether the office of member and chairman of the industrial commission was abolished by the amendment of Article IV in 1972 or the reorganization act in 1974. We hold that it was not abolished.

It has been recognized and said many times over the years that “[i]t is not always easy to determine whether a public office has been abolished. It is not sufficient merely to declare that a particular office is abolished, if in fact it is not abolished, and the duties thereof are continued.” Of course, “[a]n office is abolished when the act creating it is repealed. But the repeal of the [law] creating an office, accompanied by the re-enactment of the substance of it, does not abolish the office.”

There is nothing in either § 12 or § 49 of the amendment which clearly abolishes the office of member and chairman of the commission. In support of his position that it is abolished, relator contends and emphasizes that together these sections establish new departments as successors to the departments in existence and in this connection provide that the “Labor and Industrial [relations] Commission shall be the successor to the Industrial Commission * * *.” All this means, in the context “successor” is used, is that the commission, as a corporate body or entity in charge of the department of labor and industrial relations, shall become or be known and designated as “the labor and industrial relations commission.” There is no indication that the word refers to or means the office of a member, as distinguished from the commission, the corporate entity. So far as we can determine from the words used, the effect, legal and practical, of § 49 is to give the commission in charge of the department constitutional instead of statutory standing and authority, and to change its name to that of the department it supervises. Nor, for that matter, is it clear that the industrial commission itself is in any true sense “abolished” by the amendment.

Subsection 1 of § 8 of the reorganization act does, as we have seen, say that the industrial commission is abolished. But that effect, if accomplished, is only in connection with a simultaneous transfer of not only all its powers, duties and functions to the successor but also its members. The functions, duties and powers of the commission and those of the office of commissioner and chairman were continued as they existed before (and exist today) under chapter 286. In these circumstances, the effect of a declaration that a commission is abolished and shall be succeeded by another is, if anything, nothing more than a mere colora-ble abolition; it is not an abolition in fact. This subsection does not even purport to abolish the offices of members of the commission. On the contrary, it continues the offices and provides that persons in office on the effective date of the act shall be members of the labor and industrial relations commission. In addition, it specifically provides that members previously appointed shall serve the remainder of their statutory terms of office.

Chapter 286 was not repealed by the 1972 amendment or the 1974 reorganization act. The chapter is still alive and functioning as the code by which the commission is guided in its functions. The length of the term of office of a member of the commission is, by § 49 of the amendment, locked into that provided by one of the sections of that chapter (§ 286.020) and may not be changed, except by another amendment of the constitution. The wording of § 49 of the amendment, especially that fixing the number of members, their prior interest qualifications, political party affiliation and designation of the chairman, is almost identical to that used in one of the sections (§ 286.010) of that chapter. The only changes in the functions of the office of member of the commission from that previously performed is that they were relieved from direct responsibility as members of the board of rehabilitation when those duties were assigned to the director of the division of workmen’s compensation within the department, and duties and functions were added in connection with the board of mediation and the commission on the status of women when that board and commission were transferred to the department. In other words, the duties, powers and functions of the office of member and chairman of the commission, by whatever name the commission may be designated, are, in substance, the same today they were before the 1972 amendment. The sum and substance of what we have said is that the office is the same. Its duties were continued. Hence, it was not in fact abolished by either the constitutional amendment or the reorganization act.

It is true, as relator says, that there is no authority in the amendment for members of the industrial commission to succeed to membership on the new commission. But that is not to say that the amendment prohibits legislative provision for such succession. It does not. Relator concludes from his premise of no explicit constitutional authority for succession, that the offices of members were therefore vacant upon their “creation,” thus calling into play the exclusive power of the governor to fill those “vacancies.” This department which relator describes as “new” was, like the then existing department, “created” by legislative action; it was not created by the constitutional amendment under the terms of which its existence would have commenced July 1, 1974. It was created by statute (the reorganization act) effective May 2, 1974, under the provisions of which such succession is not only authorized, it is effected. No vacancy in office existed calling for the exercise of the governor’s appointive powers. Hence, there was no conflict with those powers.

Moreover, there could be no conflict in this case with the powers of appointment granted the governor by §§ 17 and 49 of Article IV, because respondent was, as required by § 286.010 from which § 49 of the amendment was copied, appointed in 1971 by the then governor by and with the advice and consent of the senate. For the reasons stated, ouster should be denied.

Accordingly, ouster is denied and the proceeding dismissed.

MORGAN and BARDGETT, JJ., concur.

DONNELLY, C. J., and HOLMAN, J., concur in result.

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

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

SEILER, Judge

(dissenting).

The question before us is whether respondent James J. Butler is usurping the office of member of the labor and industrial relations commission. Resolution of the question depends upon the application and interpretation of the amendments to Art. IV of the state constitution adopted at the election of August 8, 1972, dealing with the reorganization of the executive branch of state government. It is axiomatic that if the office of member and chairman of the industrial commission was abolished by the constitutional amendments, then the fact that the 1972 reorganization act attempted to preserve the office to respondent is of no significance. The act must yield to the constitutional amendment. And if the old commission was superseded and a new commission — -the labor and industrial relations commission — was created by the constitutional amendments, then a vacancy existed, ipso facto, in the offices of the commissioners of the new commission upon its creation, State ex rel. Brown v. McMillan, 108 Mo. 153, 18 S.W. 784, 786 (1891). This is not disputed.

Since, as said, the constitutional amendments take precedence over the reorganization act, we must look first to the amendments for a solution of the problem, because if the answer is found in the amendments we need look no further. Of the seventeen new sections of Art. IV adopted at the August 8, 1972 election, the answer lies in these three, which read as follows:

“Section 12. The executive department shall consist of all state elective and appointive officials and employees except officials and employees of the legislative and judicial departments. In addition to the governor and lieutenant governor there shall be a state auditor, secretary of state, attorney-general, a state treasurer, an office of administration, a department of agriculture, a department of conservation, a department of natural resources, a department of elementary and secondary education, a department of higher education, a department of highways, a department of transportation, a department of labor and industrial relations, a department of consumer affairs, regulation and licensing, a department of public safety, a department of revenue, a department of social services, and a department of mental health. In addition to the elected officers, there shall not be more than fourteen departments and the office of administration. The general assembly may create by law one department, in addition to those named, provided that the department shall be headed by a director or commission appointed by the governor on the advice and consent of the senate. The director or commission shall have administrative responsibility and authority for the department created by law. Unless discontinued all present or future boards, bureaus, commissions and other agencies of the state exercising administrative or executive authority shall be assigned by law or by the governor as provided by law to the office of administration or to one of the fourteen administrative departments to which their respective powers and duties are germane. The department enumerated in this section shall be established on July 1, 1974, as successors to the departments in existence at the time of the adoption of this section ; except that they may be established by law prior to that date.” (Emphasis supplied.)
“Section 49. The department of labor and industrial relations shall be in charge of a Labor and Industrial Relations Commission consisting of three members appointed by the governor by and with the advice and consent of the senate. One member of the commission shall be a person who, on account of his previous vocation, employment, affiliation or interests shall be classified as a representative of employers, and one member who, on account of his previous vocation, employment, affiliation or interests shall be classified as a representative of employees, and one member, who, by reason of his previous activities and interests shall be classified as a representative of the public and who is licensed to practice law in the state of Missouri; except that not more than two members of the commission shall be of the same political party. A member of the commission shall be designated by the governor as the chairman. The Labor and Industrial Commission shall be the successor to the Industrial Commission and the terms of members shall be as provided by law for the Industrial Commission.” (Emphasis supplied.)
“Section 51. The appointment of all members of administrative boards and commissions and of all department and division heads, as provided by law, shall be made by the governor. All members of administrative boards and commissions, all department and division heads and all other officials appointed by the governor shall be made only by and with the advice and consent of the senate. The authority to act of any person whose appointment requires the advice and consent of the senate shall commence, if the senate is in session, upon receiving the advice and consent of the senate. If the senate is not in session, the authority to act shall commence immediately upon appointment by the governor but shall terminate if the advice and consent of the senate is not given within thirty days after the senate has convened in regular or special session. If the senate fails to give its advice and consent to any appointee, that person shall not be reappointed by the governor to the same office or position.” (Emphasis supplied.)

The old industrial commission and former department of labor and industrial relations were creatures of the general assembly and could have been changed or abolished by another general assembly. They had no constitutional status. I cannot subscribe to the view expressed in the principal opinion that the department of labor and industrial relations specifically named in Sec. 12, Art. IV, adopted by the people at the August 8, 1972 election, as one of the thirteen departments of the executive branch of state government, was already in existence before adoption of the constitutional amendment or that it did not come into existence by virtue of the constitutional amendment but instead was created by the reorganization act. Prior to the adoption of the amendment there was no such creature or entity as a constitutionally established department of labor and industrial relations in Missouri. Once the constitutional amendment was adopted, the department of labor and industrial relations came into being as a constitutional department of the executive branch, headed by a labor and industrial relations commission, as provided by Sec. 49, Art. IV, also adopted at the August 8, 1972 election. The new constitutional department was to be established on July 1, 1974, as successor to the department in existence at the time Sec. 12 was adopted, which, to repeat, was August 8, 1972. On that date the only department in existence was the statutory one created in 1945. By virtue of Sec. 12, the legislature had authority to start or establish operation of the new department prior to July 1, 1974, but the legislature did not have authority to create the new department. That had already been done by the people in the August 8, 1972 election and had the legislature done nothing the new department would nevertheless have been in full bloom and existence.

In addition, Sec. 12, supra, states specifically that there is only one department which the general assembly can create and that is the as yet unnamed and unenacted single department which is authorized in addition to the thirteen named departments and the office of administration. Even the authority to create this one department in the future comes from the amendment adopted by the people. Certainly, then, by no stretch of the imagination can it be said that Sec. 12 gives the general assembly authority to create the department of labor and industrial relations. That creation was the act of the people and the people alone, by virtue of the August 8, 1972 amendments to the constitution.

The new department of labor and industrial relations and the new labor and industrial relations commission are creatures of the amended state constitution, adopted by the vote of the people, and in common with other constitutional provisions operate as a limitation on the power of the legislature. Neither department nor commission can now be changed or abolished by the legislature, but only by a vote of the people. They are of constitutional, not merely statutory, stature. While much of the language of Sec. 49 tracks exactly the language of Sec. 286.010, supra, as to the diversity of interests to be represented by the three commissioners of the labor and industrial relations commission (one to be representative of employers, one of employees and one of the public) and the terms of the members are to be as provided by law for the industrial commission, there would be no purpose in the people enacting a constitutional amendment if it served merely to declare what previously existed. In my opinion, Sec. 49 has no such redundant purpose.

Note, too, that the former industrial commission was limited in its makeup to persons who had resided in this state for at least five years immediately prior to appointment, Sec. 286.010, supra. The new labor and industrial relations commission has no such limitation. Persons would be eligible for the new commission who were not for the old. Art. IV, Sec. 49, caps it by expressly providing that the labor and industrial relations commission shall be the “successor” to the industrial commission. Unless there is something to suggest otherwise, we are to give the words of the constitution their ordinary meaning. As said in State ex inf. Dalton v. Dearing, 364 Mo. 475, 263 S.W.2d 381, 385 (banc 1954) quoting with approval, 1 Story, Constitution, Sec. 451: “It is a settled rule of construction that ‘every word employed in the constitution is to be expounded in its plain, obvious, and common-sense meaning, unless the context furnishes some ground to control, qualify, or enlarge it. Constitutions are not designed for metaphysical or logical subtleties, for niceties of expression, or for the exercise of philosophical acuteness or judicial research. They are instruments of a practical nature, founded on the common business of life, adapted to common wants, designed for common use, and fitted for common understandings. . . . ’ ”

The plain, obvious and common sense meaning of successor is one who follows and takes the place of another, Webster’s Third New International Dictionary, p. 2282 (1961); The Oxford English Dictionary, Yol. X, p. 80 (1938); Black’s Law Dictionary, p. 1600 (Rev. 4th ed. 1968). It does not mean the continuation of the old or former. The principal opinion treats the express provision in Sec. 49 that “The Labor and Industrial Commission shall be the successor to the Industrial Commission” as meaning no more than that the old commission shall henceforth be known by a new name with the same old members, but this attributes an awkward and unnatural use to the word “successor”. It is not ordinarily used that way and so to treat it disregards the above stated rule of constitutional construction.

The majority opinion necessarily must dispose of that portion of the reorganization act which states “and the industrial commission is abolished.” It does this by saying that if it amounts to anything it is a “mere colorable abolition” and that in any event the offices of members of the commission were not abolished. As to this latter, it seems self-evident that if the industrial commission were abolished, it would take along with it the offices of its members with no need to mention them specifically. It is difficult to envision a commission being abolished and yet the offices of its members surviving. The members would then become officers of a nonexistent commission, a most unusual legal concept.

As to the “mere colorable” abolition, I note that the words actually used by the legislature were, as said above, “the industrial commission is abolished.” I also note that the legislature used these same words “is abolished” in the reorganization act to abolish some twenty-nine other commissions, departments, boards, divisions, councils, sections and offices. If “is abolished” accomplishes only a “mere colorable” abolition and “not an abolition in fact”, then there are literally hundreds of persons whose offices in state government have not been abolished at all and some thirty different commissions, departments, divisions, etc., which are still in existence, despite the avowed purpose of the reorganization act to make a functional reorganization of the executive branch of state government into a streamlined structure. I do not believe this was the intent of the people in adopting the reorganization amendments, nor can I believe that the legislature labored under any such misapprehension as to the meaning of the word “abolished”. When the legislature used the word over and over again in the reorganization act, I think it used it in its common, everyday sense — to do away with.

Sec. 8, subsection 1 of the reorganization act provides “All the powers, duties and functions of the industrial commission are transferred by type I transfer to the labor and industrial relations commission and the industrial commission is abolished.”

Sec. 8, subsection 1, as interpreted by the majority opinion, reads this way: “The industrial commission is not abolished, but shall be continued and shall be renamed the labor and industrial relations commission. It shall continue to possess the same powers, duties, and functions and the same are not transferred to another agency.”

If the general assembly had intended by Sec. 8, subsection 1 merely to continue the old industrial commission with the same powers, duties and functions, changing only its name, is it not reasonable to conclude that it would have said so? If it did not intend to abolish anything or transfer any powers, duties or functions from one organization to a different one, why did it say “the industrial commission is abolished”? If the only change was to rename the existing commission and there was no new and separate commission, why did the general assembly speak of transferring the powers, duties and functions?

It is suggested that when the general assembly said “the industrial commission is abolished” it meant exactly what it said. It was not simply renamed. It was abolished. Otherwise, the general assembly would have ordered that the existing commission be transferred to the new department pursuant to Sec. 12, Art. IV, which provides that “Unless discontinued all present . commissions . . . shall be assigned by law ... to one of the fourteen administrative departments . . . .” (Emphasis supplied.) The general assembly did not transfer the old commission to any department. The legislature abolished it and then provided that its powers, duties, and functions were transferred to a new labor and industrial relations commission.

Finally, a few words should be said about the unconstitutionality of that portion of Sec. 8, subsection 1 of the reorganization act which purports to name the members of the old industrial commission as the members of the new labor and industrial relations commission, thereby circumventing the appointment power of the governor. Sec. 51, Art. IV, supra, provides the appointment of all members of commissions shall be made by the governor by and with the advice and consent of the senate. The reorganization act, Sec. 1; subsection 6, states the head of each department shall be appointed, as provided by the constitution, by the governor with the advice and consent of the senate. Sec. 1, subsection 8(1) directs that “The governor shall appoint the heads of the departments as soon as possible, after the effective date of this act.” Sec. 17, Art. IV, adopted in the 1945 constitution, and untouched by the August 8, 1972 amendments, already provided that the heads of all departments shall be appointed by the governor by and with the advice and consent of the senate, so it must be that Sec. 51 was enacted by the people through an abundance of caution to be certain that the governor, whoever he was, would appoint the heads of the new departments under the sweeping reorganization authorized by the constitutional amendments adopted August 8, 1972. Certainly there was no indication of any intention on the part of the people to reduce the governor’s appointment powers.

I do not believe the fact that respondent, in the year 1971, was appointed by Governor Hearnes to the old industrial commission, with the advice and consent of the senate, can constitute either appointment by the governor, or advice and consent of the senate therein, to the new labor and industrial relations commission created in 1972. If so, then by the expedient of so providing in the reorganization act (or amendment thereof) the general assembly can carry forward into the new departments every department head under the old structure. It could have, for example, (although it did not) have carried forward the members of the old commission on higher education to the new coordinating board for higher education, and the members of the old state mental health commission to the new state mental health commission. In my opinion, the voters intended by adopting Sec. 51, Art. IV (which so provides) that the governor should appoint the heads of all the new departments and the attempt made in the reorganization act to circumvent his appointment power over the new labor and industrial relations commission, which is the head of the new department by the same name, is therefore unconstitutional.

For the foregoing reasons, I respectfully dissent.

      . References to sections of the statutes are indicated. to RSMo 1969, V.A.M.S., unless otherwise

      . Submitted by the 76th General Assembly, second regular session, through House Joint Resolution No. 65. See Laws of Missouri, 1971-72, pages 1049 to 1052.

      . It also authorized the creation by law of one more (unnamed) department, making fourteen.

      .This department was first established in 1945 by Chapter 286, under authority of § 12 of Article IV of the 1945 constitution. See Laws of Missouri, 1945, p. 1101.

      . Whereas § 286.010 required that members shall have resided in this state for at least five years immediately prior to appointment, § 49 of the amendment does not specify a residence qualification.

      . The quotations in this paragraph are taken from 63 Am.Jur.2d, Public Officers and Employees, § 37, p. 648. See: State’s Prison v. Day, 124 N.C. 362, 32 S.E. 748 (1899); People ex rel. Burby v. Howland, 155 N.Y. 270, 49 N.E. 775 (1898); State ex rel. Taylor v. Cowen, 96 Ohio St. 277, 117 N.E. 238 (1917).

      . See § 286.060 providing that it may sue general powers, duties and jurisdiction. and be sued as such and prescribing its

      . It should be pointed out that while respondent was appointed a member of the old industrial commission in 1971 by Governor Heames, long before the constitutional reorganization amendments were adopted and before there was any labor and industrial relations commission in existence, he also was appointed by Governor Bond on June 27, 1974, as a member of the new labor and industrial relations commission. The senate was not in session at the time of Governor Bond’s appointment, so respondent’s authority to act commenced immediately upon his appointment, as so stated in Sec. 51, Art. IV, infra. The difficulty, however, arises from the fact that when the senate next convened, as it did on November 19, 1974, it failed to give its advice and consent to the appointment within thirty days thereafter and so, as provided by Sec. 51, Art. IV, respondent’s authority to act terminated, commencing December 20, 1974. The majority opinion avoids this constitutional obstacle by holding there was no vacancy for Governor Bond to fill, so that the June 27, 1974, appointment was futile.

      . The old department of labor and industrial relations and the old industrial commission of Missouri were established by statute in 1947, L.1945, p. 1101, Sec. 1 (Sec. 286.010, V.A.M.S.). At the same time the former Workmen’s Compensation Commission was done away with, L.1945, p. 1996.

      . At the time the reorganization amendments were adopted, it could not be known who the new governor would be or of what political party. There was certain to be a new governor, however, as the incumbent was not eligible for re-election under the constitution and, of course, was not a candidate.


source: Caselaw Access Project

author: BARDGETT, Judge. FINCH, Judge

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Robert C. HOWELL, Appellant (two cases).
    Nos. 58283, 58768.
    Supreme Court of Missouri, En Banc.
    June 9, 1975.

      John C. Danforth, Atty. Gen., David Ro-bards, Asst. Atty. Gen., Jefferson City, for respondent.
    Harry H. Bock, New Madrid, for Appellant; Robert C. Howell, in pro. per.
   BARDGETT, Judge.

These are appeals by Robert C. Howell from a judgment in No. 58283 convicting him of murder in the first degree of David Blankenship and sentencing him to life imprisonment, and from a judgment in No. 58768 convicting him of assault with intent to kill with malice aforethought of Randy Krebs and sentencing him to ten years. The offenses arose out of the same event, but the two cases were tried separately. The verdict in the murder case was returned on January 30, 1973, and in the assault case on March 19, 1973.

The notice of appeal in the murder case was filed March 16, 1973, with the appeal being taken directly to this court. This court has jurisdiction. Art. V, § 3, Mo. Const., V.A.M.S., as amended 1970, and order of this court of April 9, 1973, retaining jurisdiction of appeals filed prior to April 9, 1973, involving convictions for offenses punishable by life imprisonment or death.

The appeal in the assault case was properly taken to the Missouri Court of Appeals, Springfield District. Art. V, § 3, Mo.Const., as amended 1970. The court of appeals recommended transfer of the cause to this court prior to opinion pursuant to Art. V, § 10, Mo.Const., as amended 1970, and order of this court of December 18, 1973. The court, pursuant to said recommendation, ordered the appeal transferred.

The defendant does not contend that the state failed to make a submissible case against him in either case. The court has reviewed the record in both cases and finds that the state made submissible cases even when that portion of the evidence which defendant contends was obtained in an unconstitutional manner is not considered.

The evidence in both cases was essentially the same. At about 1:00 a. m. on Sunday, November 19,1972, David Blankenship’s car was found parked on the levee just east of New Madrid with David Blankenship and Randy Krebs inside. Blankenship had been shot in the head behind the right ear and was dead. Krebs had been shot in the left ear but was alive and survived after an extended stay in a hospital. Defendant was charged with the murder of Blankenship and the assault on Krebs.

In both appeals defendant contends that there was no warrant or probable cause for his arrest and therefore certain items seized from him at the time of arrest, clothing items obtained from his home, and results of tests done on both groups of clothing were not admissible in evidence against him as having been obtained in violation of the search and seizure provisions of the U.S. Const., Amends. 4 and 14, and Art. I, § 15, Mo.Const. Defendant also contends in the assault case that a gun residue test and its results are inadmissible for the same reason.

About 10:00 a. m., Sunday, November 19, 1972, Deputy Sheriff Ivy arrested defendant on a street in New Madrid, Missouri, and took him to a nearby building where Mr. Ivy took a black coat and a package of cigarettes from him. These items were turned over to the Missouri Highway Patrol and certain tests were made.

About thirty minutes after defendant’s arrest, Mr. Ivy went to defendant’s place of residence in New Madrid which is the home of Mary Howard. Mary Howard is defendant’s stepmother. Mr. Ivy asked her for defendant’s clothing. Mrs. Howard went to a room or rooms in her house and brought defendant’s clothing, including a pair of green pants, a green shirt, and a pair of shoes, to the door and gave them to Mr. Ivy. There was no search of Mrs. Howard’s home.

The officers found vomit in the automobile in which Blankenship and Krebs were found. Analysis of the vomit revealed the presence of pear and marijuana particles. Three swatches taken from the black coat seized upon defendant’s arrest revealed the presence of human blood of an inconclusive type. A fourth swatch taken from the black coat revealed a vomit stain with pear and marijuana particles contained therein. The cigarette package, which was introduced only in the murder trial, had upon it a stain of human blood of an inconclusive type.

As noted, the green shirt and green pants were obtained from Mary Howard. A sample taken from the seat of the green pants revealed a vomit stain with pear and marijuana particles contained therein.

In the assault trial, Blankenship’s jacket, the one he was wearing on the night he was murdered, was introduced into evidence. The jacket contained human blood stains of an inconclusive type, particles of marijuana, and vomit residue with pear particles contained therein.

In both trials, the substance of an expert witness’s testimony was that, in his opinion, the vomit specimens found on the black coat, on the green pants, and in the car, were the same due to the similarity in the pear particles and the similarity in the particular characteristics of the marijuana particles found in each of the specimens. Additionally, in the assault trial, the expert witness testified, in substance, that the marijuana particles found on Blankenship’s jacket were the same as the marijuana particles found in the vomit stains on the black coat, on the green pants, and in the car; and that the vomit containing pear particles found on Blankenship’s jacket was the same as the vomit stains on the black coat, on the green pants, and in the car.

About an hour or so after defendant was arrested by Deputy Ivy, there was a gun residue test done on defendant’s hands at the New Madrid County jail. This involves swabbing the palms and back of the hands with a solution. Thereafter, the swabs are tested for the presence of barium and antimony materials that are present in the primer of ammunition in order to form an opinion as to whether the subject has recently fired a gun. The testimony in both cases was that the gun residue test revealed that defendant had recently fired a gun.

Prior to the first trial, the defendant filed a motion, applicable to both cases, to suppress the items of clothing seized from him at the time of his arrest, the items of clothing obtained from Mrs. Howard at defendant’s residence, and any test results made on the clothing.

The basis for the motion was that the seizure of the clothing from defendant and that obtained from Mrs. Howard constituted an unconstitutional search and seizure under Art. I, § 15, Mo.Const., and Amends. 4 and 14 of the U.S.Const., and this contention is based upon the assertion that the arrest of defendant was invalid as being without warrant and without probable cause.

The motion to suppress did not attack the gun residue test. Whether or not defendant or his attorney knew that the swabbing of defendant’s hands was such a test is not known. The evidence as to the gun residue test results was admitted in the murder trial without objection. In the subsequent assault trial, defendant did object and preserved the alleged error for review.

The trial court held a hearing on the motion to suppress. The defendant did not testify. Witnesses called by defendant established that no warrant for the arrest of defendant was applied for or issued prior to the arrest and that no search warrant was issued at any time. Mr. Ivy testified, but his testimony begins with the arrest of the defendant, and he gave no testimony at all as to any information he (Deputy Ivy) had which caused him to arrest the defendant. The court has reviewed the evidence given at the preliminary hearing and at the trials. Nowhere is there any evidence that Deputy Ivy had any information, prior to the arrest of defendant, with respect to defendant’s involvement in the shooting of Blankenship or Krebs. It was simply not the subject of any questions asked of or of any answers given by Deputy Ivy.

The state conceded in its briefs and in oral argument that, “There is no showing in the record that there was any probable cause of the officers to make the arrest.” The court has, nevertheless, examined the record and finds the concession to be accurate.

The state’s position is that the burden of showing that the arrest was illegal is upon defendant and that because there was no showing that the arrest was without probable cause and therefore illegal the court did not err in overruling the motion to suppress nor in admitting the evidence over defendant’s in-trial objection which continued to be premised on constitutional grounds. However, the state candidly states in its brief:

“The respondent recognizes that the legality of the method of obtaining some, if not all, of the evidence sought to be suppressed depends on the legality of appellant’s arrest. Given the facts which have been stated above, it would seem that some courts in this situation would reason as follows: The presumption of regularity which attends official acts made by public officers extends to arrests made pursuant to warrants but not warrantless ones. When the legality of an arrest is contested and the arrest is shown to be warrantless, it is incumbent upon the party asserting the validity of the arrest to show that the arrest met constitutional standards of probable cause. In this case, since the appellant demonstrated that his arrest was warrantless and it was not shown that there was probable cause to make the arrest, the motion to suppress should have been sustained and the evidence suppressed. See Sexton v. Gibbs, 327 F.Supp. 134 (N.D.Tex.1970), aff’d mem., 446 F.2d 904 (5th Cir. 1971), cert. denied 404 U.S. 1062, 92 S.Ct. 733, 30 L.Ed.2d 751 (1972); Manuel v. United States, 355 F.2d 344 (5th Cir. 1966); Rogers v. United States, 330 F.2d 535 (5th Cir. 1964). Basically, this authority reasons that once an arrest is shown to be warrantless, the burden of persuasion shifts to the party asserting the legality of the arrest to show that it was made with probable cause. If this authority were to be followed by this court, the conclusion would have to be that the trial court erred in overruling the appellant’s Motion to Suppress because, as previously indicated, there is nothing in the record to show that there was probable cause for appellant’s arrest. . . .”

In State v. Wiley, 522 S.W.2d 281 (Mo. banc 1975), this court held, “. . . ‘The lawfulness of the arrest without warrant, in turn, must be based upon probable cause, which exists “where ‘the facts and circumstances within their (the officers’) knowledge and of which they had reasonably trustworthy information (are) sufficient in themselves to warrant a man of reasonable caution in the belief that’ an offense has been or is being committed.” Brinegar v. United States, 338 U.S. 160, 175, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879, 1890 (1949), quoting from Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 69 L.Ed. 543, [555], 39 A.L.R. 790 (1925).’ Ker v. California, 374 U.S. 23, 34-35, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963).” And further, “Whether there was probable cause to arrest . depends on the information in the officers’ possession prior to the arrest. Of course, all the information in the possession of the officers and all reasonable inferences therefrom are pertinent to determine probable cause.”

In the instant case, there is simply no evidence as to what, if any, information was in the hands of the officers prior to the arrest. The state’s analysis set forth supra is correct. The state had the burden of showing probable cause for this warrantless arrest and failed to do so. The court erred in overruling defendant’s motion to suppress as to those items seized from defendant’s person at the time of his arrest and erred in admitting those items and the test results produced in direct consequence of the seizure of those items over defendant’s constitutionally-grounded objection made during the trials.

The court also overruled defendant’s motion to suppress the items of clothing obtained from Mary Howard and admitted certain of those items into evidence as well as the results of certain tests done on that clothing and their contents. The trial court was correct in its rulings with respect to the items received from Mrs. Howard and the consequent test results.

The officer went to the door of Mrs. Howard’s house and asked her for defendant’s clothing. Mrs. Howard got the clothing and gave it to the officer. There was no search; the officer did not coerce Mrs. Howard; and the circumstances do not suggest that Mrs. Howard should be regarded as an instrument or agent of the state when she produced defendant’s clothing.

A factual situation practically indentical to the instant case was presented in Coolidge v. New Hampshire, 403 U.S. 443, 448, Part III, B, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). There the wife of the defendant admitted policemen into the house and voluntarily gave them her husband’s clothing and guns. The court held there was no violation of the defendant’s constitutional protection against unreasonable searches .and seizures. The point is overruled. See also Deckard v. State, 456 S.W.2d 35, 37 (Mo.1970).

About an hour after defendant was arrested, an officer performed the gun residue test on defendant’s hands at the police station. The test results were admitted in evidence in the murder case without objection. The defendant objected to the test results in the subsequent assault trial on the ground that the test, having been done pursuant to an illegal arrest, was violative of his U.S. and state constitutional rights against unreasonable searches and seizures.

In considering the question of whether the performance of the gun residue test on defendant’s hands violated his rights against unreasonable searches and seizures under Art. I, § 15, Mo.Const., and Amends. 4 and 14, U.S.Const., it must be borne in mind, (1) that the defendant was under arrest and in custody; (2) that on the present record in the trial court and here the arrest was not shown to be based on probable cause and therefore for the purpose of these appeals must be considered to be invalid; and (3) no clear waiver (or any waiver) of search and seizure rights has been shown.

Additionally, there is no question but what the performance of the test on defendant’s hands and the taking of sample residue therefrom was a search and seizure. This is borne out by a number of cases. In Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969), the taking of fingerprints of arrested persons was held to be a search and seizure. The fingerprints were held to be inadmissible because there was no probable cause for the arrest. In Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), the taking of blood for testing was a search and seizure but the chemical analysis of the blood was admissible because the arrest was valid. The real issue in Schmerber was whether a search warrant was necessary even though the arrest was valid when the focus of the search was a substance which was part of the person of the defendant and highly evanescent in nature. In United State v. D’Amico, 408 F.2d 331 (2d Cir. 1969), the clipping of strands of hair from the head of an arrested defendant was a seizure, although it was upheld because D’Amico was under valid arrest. In United States v. Richardson, 388 F.2d 842 (6th Cir. 1968), the examination of defendant’s hands under an ultraviolet light to test for fluorescent powder was held valid as taken prior to an arrest and with defendant’s consent. Although the court said it did not regard the test in Richardson as a search and seizure within the meaning of the 4th Amend., the decision was based upon voluntary consent prior to arrest at a time when defendant was not in custody and was distinguished on that ground in United States v. Kenaan, 496 F.2d 181, 182, Fn. 1 (1st Cir. 1974).

In United States v. Kenaan, supra, government agents obtained a warrant to search defendant’s apartment for cocaine. A package had previously been coated with a fluorescent powder which would appear on the hands of one handling the package under an ultraviolet light. The agents found defendant at home, conducted a search, and discovered a spoon containing some residue which later was determined to be cocaine. While the agents were in the apartment and before arresting defendant, they used the ultraviolet light on defendant’s hands and it revealed traces of the fluorescent powder. Defendant was then arrested, tried, and convicted of possessing cocaine. Defendant contended the inspection of his hands violated his search and seizure rights. The court held at 496 F.2d 182:

“. . . There can be little doubt that an inspection of one’s hands, under an ultraviolet lamp, is the kind of governmental intrusion into one’s private domain that is protected by the Fourth Amendment. Mancusi v. DeForte, 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968); Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). If the reach of the Fourth Amendment extends to fingerprinting, Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969), and a search of one’s clothing or personal effects, United States v. Micheli, 487 F.2d 429 (1st Cir. 1973), it should certainly encompass a detailed inspection, by special instrument, of one’s skin.”

The court in Kenaan reversed and remanded the case for a new trial principally on instructional error, but noted that on remand the district court would have further opportunity to decide whether probable cause existed for the arrest before the inspection of appellant’s hands took place. If so, then the hand inspection could become admissible at the new trial as having been done immediately after the arrest so as to be practically contemporaneous therewith, if there was probable cause to arrest before the search (hand inspection) took place.

In Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973), the taking of scrapings from under the fingernails of defendant was a search and seizure. There, defendant heard that his wife, with whom he had not been living, had been murdered, so he voluntarily went to the police station for questioning. While he was there, an officer noticed a dark spot on defendant’s finger. Suspecting that the spot was dried blood, and knowing that evidence of strangulation is often found under an assailant’s fingernails, the police asked Murphy if they could take a sample of scrapings from his fingernails. He refused and under protest the police took the scrapings which proved incriminatory.

In Cupp v. Murphy, supra, the United States Supreme Court held the search of the fingernails to be constitutionally permissible in the circumstances prevailing at the time. The court said that the police had reasonable cause to believe Murphy committed the murder; the detention was but brief; and pointed out that Murphy knew he would be released from the police station and was seen by the officers attempting to remove the substance which was highly evanescent from under his fingernails. It is also significant that Murphy went to the police station of his own volition and that there was no involuntary detention at the outset at all, the court saying at 294 — 295, 93 S.Ct. at 2003: “The respondent in this case, like Davis, was briefly detained at the station house. Yet, here, there was, as three courts have found, probable cause to believe that the respondent had committed the murder. The vice of the detention in Davis is therefore absent in the case before us. Cf. United States v. Dionisio, [410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973)].”

In the instant case, the defendant was taken into custody by an arrest — but without probable cause. He did not voluntarily go to the police station for questioning. There is no evidence to indicate defendant expected to be released, that he undertook to destroy any evidence, or that he was even aware of the possible presence of the residue on his hands.

The case of United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), is often cited in search and seizure cases as being one of the latest pronouncements by the United States Supreme Court on that subject. But Robinson concerned a search of the person only, and the question was whether or not a valid custodial arrest for operating a motor vehicle after a revocation of his operator’s permit would support a full search of his person — as opposed to a pat down for weapons — so as to validate the admission into evidence of the heroin that was found on his person in the trial of a charge of possession of heroin. The court held that the noted arrest authorized a full search of the person and was not violative of the Fourth Amendment of the U.S. Constitution.

The point of difference between Robinson and the instant case is that there was a valid arrest in Robinson; in the instant case, there was no showing that the arrest was valid.

The trial court erred in admitting the gun residue test into evidence in the assault ease over defendant’s constitutionally-grounded objection.

As noted supra, there was sufficient evidence upon which a jury could have found defendant guilty without considering the inadmissible evidence. The results of-the tests made of the vomit on the black coat which defendant was actually wearing when arrested was powerful evidence of his presence in the car at the time of the shootings. The gun residue test results, admitted in evidence over defendant’s objection in the assault trial, were certainly persuasive evidence that he had recently fired a gun. Therefore, this court concludes that the admission of this evidence was prejudicial error requiring the convictions in both cases to be reversed and remanded for new trials.

The state requests that the question of probable cause for arrest be remanded to the circuit court for further evidence and findings by the trial judge and thereafter permit defendant to appeal if the trial court finds probable cause for the arrest. This court has remanded cases to the trial court where that court failed to make sufficient findings for this court to perform its appellate function. The instant appeals, however, are not deficient in that respect. Here, the trial court held an evidentiary hearing on the motion to suppress and both parties had the opportunity to introduce whatever evidence they had on the subject. The court overruled the motion, and it is that ruling under the evidence introduced that is erroneous. Thus, it is seen that the record here is wholly sufficient for this court to perform its appellate function. The orderly administration of justice requires that when a time and place is provided for issues and evidence to be presented and rulings to be made thereon it must be utilized; otherwise, parties and courts will be forever dealing with piecemeal appeals and with evidence given as an afterthought to support a judgment already entered.

A trial court’s ruling on a motion to suppress evidence prior to trial is, in a sense, interlocutory in nature. The real damage is not done until the evidence is introduced in the trial of a case for consideration by a jury. Thus, a trial court can receive additional evidence and change its ruling prior to admitting the objected-to items in evidence before a jury.

In Bynum v. United States, 104 U.S.App.D.C. 368, 262 F.2d 465 (1959), the court reversed a conviction and remanded the case for a new trial upon finding that the arrest of defendant was not shown to be with probable cause and, therefore, fingerprint evidence obtained while under illegal detention was inadmissible as being the product of an unconstitutional search and seizure, the court saying at 469: “We conclude that appellant is entitled to a new trial with opportunity accorded the parties to develop fully the facts which will establish whether the fingerprints in dispute were the product of an illegal arrest. Of course this issue will not arise if the prosecution elects to proceed without using the fingerprints taken at the time of appellant’s arrest.”

It is noted that in order for a gun residue test to produce any valid results — positive or negative — it probably must be done promptly as the residue on one’s hand will probably disappear in the normal course of living or by being rubbed off of the hand. We say “probably” because this is a matter about which the court is not certain. Testimony by one familiar with this test could resolve the questions concerning the temporary presence of the residue on one’s hands. This observation is made because in Schmerber v. California, supra, the United States Supreme Court held a blood alcohol test admissible when done following a valid arrest and dispensed with a search warrant requirement on the basis that the presence of alcohol in the blood was temporary and ■would dissipate in a short time. Under those facts the court held the blood alcohol test was an appropriate incident to Schmerber’s arrest. 384 U.S. at 771, 86 S.Ct. 1826. Obviously one cannot “rub” the alcohol out of his blood but it dissipates or disappears quickly in the normal course of events.

In United States v. Love and Oglesby, 482 F.2d 213 (5th Cir. 1973), the defendants were convicted of bombing a building. Oglesby was validly arrested and taken to the police station where his hands were swabbed with an acetone solution to determine whether nitrate was present on his hands. The test result was affirmative. The case did not directly involve search and seizure issues but the court made the following observation which is appropriate to the instant case, stating at 482 F.2d 218:

“The nitrate on Oglesby’s hands was even more likely to vanish than the materials lodged under Murphy’s [Cupp v. Murphy, supra] fingernails, or the alcohol in Schmerber’s [Schmerber v. Calif., supra] blood. The first vigorous scrubbing of the hands would have destroyed Murphy’s material, but merely rubbing the hands would have destroyed the nitrate oils [on Oglesby’s hands].”

The foregoing quote probably accurately describes what the defendant in the instant case could have done to remove the barium and antimony from his hands and thus destroy that evidence. If so, the search here — gun residue test — falls within the exception to search warrant requirements relating to destructible evidence if the arrest was valid. Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Schmerber v. California, 384 U.S. at 770, 86 S.Ct. 1826.

In the instant cases upon remand for new trials, the state will have the opportunity, if it so chooses, to request a further evidentia-ry hearing to develop fully the facts, if it can, to show probable cause for the arrest, or it may choose to proceed to trial without using the evidence illegally seized. The defendant will have the opportunity to seek to suppress the gun residue test — the basic constitutional admissibility of which is also dependent upon probable cause for the arrest. Additionally, the state may desire to introduce evidence as to the nature of the residue which gets onto one’s hands when he fires a gun and whether that residue is subject to disappearing of its own accord or is subject to easy removal by the suspect.

Defendant contends he was entitled to a separate preliminary hearing on each of the two charges.

The record reflects that the prosecuting attorney filed separate complaints in magistrate court — one alleging the murder of Blankenship and the other alleging the assault on Krebs. Defendant was represented by counsel and was fully aware of the two separate charges. Defendant requested separate preliminary hearings which request was denied upon the prosecutor’s assertion that both complaints arose out of the same event and the evidence would be the same in both cases as to defendant’s probable involvement.

A preliminary hearing cannot, itself, result in conviction but is solely for the determination of probable cause. No perceivable purpose would be served by having two preliminary hearings in the circumstances presented by these cases. Defendant was afforded a preliminary hearing which encompassed both charges which arose out of the same event. The point is overruled.

Defendant complains of the magistrate court’s denial of his oral motion for copies of all witnesses’ statements which ruling was made at the outset of the preliminary hearing. Defendant directs us to no authorities in support of his contention that he is entitled to discovery at the preliminary hearing stage of the proceedings.

Rules 25.30 through 25.45, V.A.M.R., effective July 1, 1974, which were not in effect at the time these cases were tried, concern discovery in felony cases arising after that date. Even now, Rule 25.30 states that Rules 25.30 through 25.45 shall “apply to all felony cases and discovery may commence upon the filing of the indictment or information." (Emphasis supplied.) Defendant was not entitled to the statements he sought at the preliminary hearing stage. The point is overruled.

Defendant’s points relating to an alleged outburst by a witness, which will probably not occur on retrial, and his objections to the wording of the murder instruction, and the failure to give a manslaughter instruction in the murder case, which will not recur on retrial, need not be decided. As to the required instructions in murder cases, see Notes on Use, as amended by order of January 13, 1975, effective March 1, 1975, MAI-CR 6.02, 6.06, and 6.08, and State v. Stapleton, 518 S.W.2d 292 (Mo. banc 1975).

In the assault case appeal, defendant contends the court erred in failing to instruct the jury on assault with intent to kill or do great bodily harm without malice. No such instruction was requested by the defendant.

In the past and at this time the controlling factor with respect to the submission of a lesser offense in assault cases is whether the facts in evidence are sufficient to arguably show a lack of an essential element of the higher degree of the offense.

State v. Johnson, 461 S.W.2d 724 (Mo.1971), is a case where no lesser assault instruction was required. The court analyzed the evidence and concluded that there was no evidence of self-defense, justification, or any extenuating or mitigating fact or circumstance suggestive of a lack of malice on the defendant’s part in committing an unprovoked attack with a knife.

State v. Fine, 324 Mo. 194, 23 S.W.2d 7 (1929), is an example of a situation where the failure to submit an instruction on a lesser assault offense was error and the judgment was reversed and the case remanded for new trial. The court analyzed the evidence and concluded that there was sufficient evidence to submit the principal charge of assault with intent to kill with malice but also concluded that there were sufficient facts in evidence from which the jury could find that defendant did not intend to kill and also that the jury could find the assault was committed without malice. The court reversed and remanded for the failure of the trial court to give an assault-with-intent-to-kill-without-malice instruction and the failure to give a common-assault instruction.

In the instant assault case, there was no evidence of any mitigating circumstances at all. As such, it is similar to State v. Johnson, supra, and the court did not err in failing to give a lesser assault instruction under the law and presently prevailing procedure. The point is overruled.

Defendant contends that by prosecuting him twice — once for murder of Blankenship and once for assault on Krebs — and using the same evidentiary facts in both cases, the state has violated his rights against double jeopardy under the United States and Missouri constitutions.

This issue was decided against defendant’s contentions in State v. Moton, 476 S.W.2d 785 (Mo.1972). The point is overruled.

The judgments in cause numbers 58283 and 58768 are reversed and both cases are remanded for new trials.

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

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

MORGAN and HOLMAN, JJ., dissent and concur in separate dissenting opinion of FINCH, J.

FINCH, Judge

(dissenting).

I respectfully dissent from the principal opinion written in these two cases. I agree with the conclusion reached therein that the transcripts before us do not show probable cause for the arrest of defendant Howell and that for this reason the trial court erred in overruling defendant’s motions to suppress those items seized from defendant’s person at the time of his arrest and erred in admitting into evidence those items and the test results with reference thereto. My disagreement with the principal opinion is with reference to what relief this court should direct at this time.

In my view, we should by order remand both cases to the trial court for the purpose of a further evidentiary hearing on the issue of whether Deputy Sheriff Ivy had probable cause to arrest Howell at the time he was taken into custody. At such hearing the parties would have the opportunity to offer whatever proof they have on this issue, following which the trial court should make a finding on whether probable cause has been shown. The trial court then should certify to us the transcript of its supplementary hearing plus its findings and conclusions.

If, following this additional hearing, the trial court finds that the State has not established probable cause for defendant’s arrest, then a new trial in both cases will be necessary and our opinion should so hold. On the other hand, if, on remand, based on additional evidence introduced, the trial court finds and we concur that there was probable cause for the arrest of defendant, a new trial will be unnecessary, and we should affirm the judgment of conviction. This necessarily follows because in that event seizure of the various articles incident to the arrest was proper and defendant would not have been prejudiced by the introduction of those items and the tests thereon in evidence.

There is ample precedent and authority for the procedure which I suggest. It has been approved and utilized by the Supreme Court of the United States on several occasions, as the following cases disclose.

In Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1963), defendant argued that he was entitled to have the trial judge, outside the hearing of the jury, decide whether his confession was voluntary and that this question of voluntariness should not have been left to the jury. The Supreme Court agreed, holding that Jackson had a constitutional right to such a determination by the trial judge and that he had not received an adequate and reliable determination of that issue. However, having so held, the Supreme Court did not direct that the case be remanded for a new trial on guilt or innocence. Instead, it held that a procedure, such as I propose in this case, was proper and should be followed, saying, 378 U.S. at 393 — 95, 84 S.Ct. at 1790:

“It is New York, therefore, not the federal habeas corpus court, which should first provide Jackson with that which he has not yet had and to which he is constitutionally entitled — an adequate eviden-tiary hearing productive of reliable results concerning the voluntariness of his confession. It does not follow, however, that Jackson is automatically entitled to a complete new trial including a retrial of the issue of guilt or innocence. Jackson’s position before the District Court, and here, is that the issue of his confession should not have been decided by the convicting jury but should have been determined in a proceeding separate and apart from the body trying guilt or innocence. So far we agree and hold that he is now entitled to such a hearing in the state court. But if at the conclusion of such an evidentiary hearing in the state court on the coercion issue, it is determined that Jackson’s confession was voluntarily given, admissible in evidence, and properly to be considered by the jury, we see no constitutional necessity at that point for proceeding with a new trial, for Jackson has already been tried by a jury with the confession placed before it and has been found guilty. True, the jury in the first trial was permitted to deal with the issue of voluntariness and we do not know whether the conviction rested upon the confession; but if it did, there is no constitutional prejudice to Jackson from the New York procedure if the confession is now properly found to be voluntary and therefore admissible. If the jury relied upon it, it was entitled to do so. Of course, if the state court, at an evidentia-ry hearing, redetermines the facts and decides that Jackson’s confession was involuntary, there must be a new trial on guilt or innocence without the confession’s being admitted in evidence.
“Obviously, the State is free to give Jackson a new trial if it so chooses, bat for us to impose this requirement before the outcome of the new hearing on volun-tariness is known would not comport with the interests of sound judicial administration and the proper relationship between federal and state courts.” (Emphasis supplied.)

Subsequently, in Sims v. Georgia, 385 U.S. 538, 87 S.Ct. 639, 17 L.Ed.2d 593 (1967), hereinafter referred to as Sims I, the Supreme Court concluded that on the record before it the confession of defendant had not been sufficiently shown and determined to be voluntary and hence admissible. In so holding the Supreme Court said that the trial court must rule with unmistakable clarity as to whether the confession was voluntary and that the trial court had not done that. In addition, the Court pointed out that at the earlier trial the state had not produced as witnesses the police officers who had been present at the time defendant claimed he was mistreated prior to his confession and thus had failed to rebut defendant’s testimony regarding physical abuse prior to his confession. However, having so held, the Supreme Court did not reverse and remand for new trial. Instead, following the procedure which had been utilized in Jackson v. Denno, supra, the Court remanded the case for an evidentiary hearing and a determination in the state court as to the voluntariness of defendant’s confession.

Thereafter, following disposition in the state courts on remand, the Sims case returned to the Supreme Court in Sims v. Georgia, 389 U.S. 404, 88 S.Ct. 523, 19 L.Ed.2d 634 (1967), hereinafter referred to as Sims II. In this opinion the Court recognized that on remand the state trial judge had made a clear determination that the confession was voluntary. On that basis he had denied a new trial. However, the Supreme Court, concluding that the evidence was insufficient to establish voluntariness of the confession, reversed and remanded for a new trial. In so holding the Court said, 389 U.S. at 406, 88 S.Ct. at 525:

“Thus in remanding the case for a hearing on voluntariness we indicated to the State that as the evidence then stood it had failed adequately to rebut petitioner’s testimony that he had been subjected to physical violence prior to his confession. The State had every opportunity to offer the police officers, whose failure to testify had already been commented upon here, to contradict petitioner’s version of the events. Its failure to do so when given a second chance lends support to the conclusion that their testimony would not, in fact, have rebutted petitioner’s.” (Emphasis supplied.)

There are cases other than ones involving admissibility of confessions in which the Supreme Court has utilized this same type of procedure instead of reversing and remanding for a new trial at the outset. For example, in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1966), one issue involved the effect of the absence of counsel for defendant at a lineup in which he had been required to appear. The Court concluded that defendant was guaranteed a right to counsel at said lineup by the sixth amendment to the Federal Constitution. The question then arising was what relief should be given as a result of the fact that counsel had not been provided at that time. The Court utilized a procedure comparable to that in Jackson v. Denno, saying, 388 U.S. at 239-40, 87 S.Ct. at 1939:

“We come now to the question whether the denial of Wade’s motion to strike the courtroom identification by the bank witnesses at trial because of the absence of his counsel at the lineup required, as the Court of Appeals held, the grant of a new trial at which such evidence is to be excluded. We do not think this disposition can be justified without first giving the Government the opportunity to establish by clear and convincing evidence that the in-court identifications were based upon observations of the suspect other than the lineup identification.” (Emphasis supplied.)

Subsequently, the opinion says, 388 U.S. at 242, 87 S.Ct. at 1940:

“On the record now before us we cannot make the determination whether the in-court identifications had an independent origin. This was not an issue at trial, although there is some evidence relevant to a determination. That inquiry is most properly made in the District Court. We therefore think the appropriate procedure to be followed is to vacate the conviction pending a hearing to determine whether the in-court identifications had an independent source, or whether, in any event, the introduction of the evidence was harmless error, Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, and for the District Court to reinstate the conviction or order a new trial, as may be proper. See United States v. Shotwell Mfg. Co., 355 U.S. 233, 245-246, 78 S.Ct. 245, 253, 2 L.Ed.2d 234.” (Emphasis supplied.)

In United States v. Shotwell Manufacturing Co., 355 U.S. 233, 78 S.Ct. 245, 2 L.Ed.2d 234 (1957), a case cited and relied on in Wade, the defendants were convicted in federal court of willfully attempting to evade federal corporate income taxes. The conviction was reversed in the Court of Appeals on the ground that the privilege of defendants against self-incrimination had been violated by the admission of evidence obtained as a result of timely, voluntary disclosures made by them in good faith in the hope of obtaining immunity from criminal prosecutions under a policy then followed by the Treasury Department.

After petitioning the Supreme Court for certiorari, the government moved that the case be remanded to the district court on the ground that newly discovered evidence revealed that the testimony at the trial concerning the timeliness and good faith of respondents’ disclosures was perjured and fraudulent. Defendants objected, contending that further proceedings below might work to the advantage of the government and that it was unfair to allow, the government at that stage of the proceedings to bolster the record relating to the suppression issue. These objections were overruled by the Supreme Court which stated that in the district court both sides would have the opportunity to offer evidence with respect to the validity of the asserted voluntary disclosures. In the course of its opinion, the Court said, 355 U.S. at 244, 78 S.Ct. at 252:

“We should not lose sight of the fact that the Government’s new showing does not relate to an issue submitted to the jury in the proceedings below, but rather to a preliminary question as to the admissibility of evidence. Hence, to grant the Government’s motion is not to permit it to ‘bolster’ the evidence upon which the verdict of guilty was returned by the jury in this case. That verdict clearly must stand or fall on the sufficiency of the evidence already introduced at the trial.
“In these circumstances, acceptance of the respondents’ position on this motion would be tantamount to sanctioning a rule which would prohibit appellate review upon a record suspect of taint, if the taint might operate to the disadvantage of the defendants, but which would nevertheless require review if the taint might operate to their advantage. We cannot subscribe to that quixotic result. The fair administration of justice is not such a one-way street.” (Emphasis supplied.)

This court has followed the mechanism of Jackson v. Denno and other Supreme Court cases referred to herein on numerous occasions. State v. Ussery, 452 S.W.2d 146 (Mo.1970); State v. Taggert, 443 S.W.2d 168 (Mo.1969); State v. Edwards, 435 S.W.2d 1 (Mo.1968); State v. Auger, 434 S.W.2d 1 (Mo.1968); State v. Devoe, 430 S.W.2d 164 (Mo.1968); State v. Glenn, 429 S.W.2d 225 (Mo. banc 1968).

In explaining its conclusion not to have the circuit court conduct a further eviden-tiary hearing on the issue of probable cause, the principal opinion states that the trial court held such a hearing on the motion to suppress at which both parties had an opportunity to introduce whatever pertinent information they had and that they should be held thereto and not permitted later to supply additional evidence to support the judgment previously entered. In so ruling, the principal opinion completely ignores the contrary conclusion reached by the Supreme Court of the United States in Jackson v. Denno, Sims I, Sims II, Wade and Shotwell. In fact, none of these cases are even mentioned. Instead, the principal opinion relies for its authority in requiring a new trial on the case of Bynum v. United States, 104 U.S.App.D.C. 368, 262 F.2d 465 (1959), a case decided prior to Jackson, Sims I, Sims II and Wade. Furthermore, this position taken in the principal opinion overlooks the nature of what is involved. We are not dealing with evidence relative to an issue to be resolved by the jury. Instead, we are concerned with evidence which relates to whether certain other evidence is admissible. If in this hearing outside the presence of the jury the judge determines that the officer had probable cause to arrest, then the articles taken from defendant incident to his arrest (and the tests performed thereon) are admissible in evidence and there is no need to retry the case on the theory that admission thereof in evidence prejudiced the defendant. They would be admissible in a new trial and, on the basis of the supplemental evidentiary hearing (assuming it to show probable cause) were admissible in the first trial. No new evidence bolstering the jury’s verdict is involved.

The principal opinion comments that on occasion this court has remanded cases to the trial court pursuant to the Jackson v. Denno procedure for the purpose of further determination as to admissibility of evidence prior to this court writing its opinion and reaching a conclusion as to disposition of the case but that those have been instances where the lower court had simply failed to make sufficient findings for this court to perform its appellate function. Our prior decisions are not so limited. For example, in State v. Ussery, supra, this court by order directed the trial court to conduct a further hearing “giving the state and the defendant an opportunity to present evidence in addition to that contained in the transcript of the record,” subsequent to which the trial court was to make an express finding as to whether the confession was voluntary. Such a hearing was held and a supplemental transcript of the testimony and findings was certified to this court. On the basis of that supplemental record this court then affirmed the finding of the trial court that the statements, admissions and confessions of the defendant were voluntary and that their admission into evidence was not prejudicial to the defendant. The court affirmed the judgment of conviction and no new trial was required.

In State v. Taggert, supra, the court entered a similar order. Further testimony was taken after which the trial court, made a finding that defendants’ confessions were voluntary. On the basis thereof, the judgment of conviction was affirmed, the court concluding that admission of the confessions of defendants did not result in prejudice to the defense. Again the need for holding a new trial was avoided.

In State v. Devoe, supra, this court entered a similar order which provided for the trial court to conduct a hearing and receive such additional evidence as should be offered by the state or by the defendant and then make a finding as to voluntariness. At that subsequent hearing, additional testimony was taken after which the court made a finding that the confession was voluntary. As a result of that supplemental hearing, the judgment of conviction was affirmed without a new trial.

If in Ussery, Taggert, and Devoe, this court had followed the procedure proposed in the principal opinion instead of ordering the trial court to conduct an additional Jackson v. Denno type of hearing on volun-tariness and admissibility of the confessions, the courts of this state would have been required to conduct new jury trials with subsequent new appeals even though the confessions were found to be voluntary and hence admissible. The procedure followed avoided unnecessary retrials. Our experience in those instances demonstrates the utility and the desirability of the Jackson v. Denno procedure.

In recent years the volume of litigation, particularly criminal, has increased considerably. Our trial courts are busy trying to dispose of their dockets. Much emphasis is being placed, nationally and in this state, on efforts to find ways to simplify and expedite the disposition of cases. Under such circumstances, it seems completely unnecessary to me to reverse and remand these two cases for complete new trials and probable appeals when we have available for use a procedure which has been approved repeatedly by the Supreme Court of the United States and which has been successfully utilized by this court. It is not an overstatement to say that the Supreme Court of the United States has been amply solicitous of the rights of persons accused of crime. If that Court had felt that the admission of evidence such as confessions or items taken from the person of the defendant without probable cause necessitated automatic remand for new trials rather than utilizing the procedure employed in Jackson v. Den-no, Sims I, Sims II, Wade and Shotwell, it is reasonable to conclude that said Court would have ordered those cases reversed and remanded for new trial. Instead, the Court found that the rights of those defendants were protected by having the trial court conduct an additional hearing in which additional testimony could be heard and a finding then made on admissibility of the evidence in question. Not only did the Supreme Court reach that conclusion but it also said in Jackson v. Denno, as previously noted, that to do otherwise “would not comport with the interests of sound judicial administration.” I completely agree with that viewpoint and at this time would by order direct the trial court in these two cases, as we have done on previous occasions, to conduct a further hearing at which the State and the defendant would be given an opportunity to present evidence in addition to that contained in the transcript of the record on appeal. The trial court then would make an express finding as to whether Deputy Ivy had probable cause to arrest defendant.

Paraphrasing what the Supreme Court said in Jackson v. Dénno, I would hold that Howell is entitled to a reliable determination concerning the existence of probable cause before evidence taken incident to his arrest is admissible in evidence. Unless the evidence shows and the court finds therefrom that there was probable cause for his arrest, articles taken from him incident to that arrest are not admissible in evidence against him. He is now entitled to a hearing in the trial court for the purpose of determining whether there was probable cause for his arrest. It does not follow, however, that he automatically is entitled to a complete new trial including a retrial of the issue of guilt or innocence. If, at the conclusion of an evidentiary hearing in the trial court on the probable cause issue, it is determined that there was probable cause for his arrest so that articles taken from his person at that time incident to that arrest are admissible in evidence and properly to be considered by the jury, there is no constitutional necessity at that point for proceeding with a new trial because Howell already has been tried by a jury with this evidence placed before it and has been found guilty. If the jury relied upon such evidence, it was in that event entitled to do so. Of course, if the trial court at an evidentiary hearing redetermines the facts and finds that there was not probable cause for Howell’s arrest, then the evidence taken from him incident to that arrest was not admissible in evidence and there must be a new trial on guilt or innocence without those articles being received in evidence.