author: PRITCHARD, Chief Judge.

text:
    STATE of Missouri, Respondent, v. James E. BEARDSLEY, Appellant.
    No. KCD 28420.
    Missouri Court of Appeals, Kansas City District.
    Feb. 28, 1977.
    Motion for Rehearing and/or Transfer Denied April 15, 1977.
    Application to Transfer Denied May 10, 1977.

      Joe Hamilton Scott, Public Defender, Fifth Judicial Circuit of Missouri, St. Joseph, for appellant.
    John C. Danforth, Atty. Gen., David L. Baylard, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SWOFFORD, P. J., PRITCHARD, .C. J., and DIXON, J.
   PRITCHARD, Chief Judge.

Upon a finding of the applicability of the Second Offender Act, in accordance with an allegation thereof in the first amended information, and upon a finding by the jury of appellant’s guilt, the court sentenced him to 45 years for kidnapping Grace Mein for ransom under Count I, and 10 years for kidnapping for ransom Barbara Cooke, the sentences to run consecutively in the Department of Corrections of Missouri. See § 559.230, RSMo 1969 (as amended, Laws 1972).

In the two points presented it is contended that reversible error was committed (1) in admitting testimony about an assault on two persons in a tavern just prior to the charged kidnapping, upon the ground that it was irrelevant and prejudicial because it constituted evidence of separate uncharged crimes; and (2) that reversible error was committed in admitting the testimony of the victims, Grace and Barbara, that appellant told them he was wanted for armed robbery in Connecticut and New York, and that he had been in prison in Connecticut and was on parole there, and had done burglaries and robberies and had beaten up a dope peddler in New York and had stolen his money, also because it was evidence of separate uncharged crimes and was irrelevant and prejudicial.

The unusual, bizarre facts in this case are these: On January 31, 1975, pursuant to a telephone conversation from Nebraska to the St. Joseph, Missouri, Police Department, officers were to go and arrest a man by the name of James Beardsley, also known as James Brown, whose description was given. Officer Ross, Sergeant Muehlenbacher and Officer Lafever went to the Greyhound Bus Depot in St. Joseph and checked for persons of the given description, and found that a person fitting the description had bought a ticket a few minutes before, and that the bus would be leaving within 15 to 20 minutes for Phoenix, Arizona. Muehlenbacher and Ross proceeded to search the Silver Dollar Tavern nearby, and saw appellant at the front of the tavern bar, close to the door. Appellant identified himself as James Brown, an alias he sometimes used as the officers had been informed. Ross heard shots from the rear of the tavern and ran toward the rear door to assist Lafever, leaving appellant with Muehlenbacher who had placed him under arrest.

As Ross ran to the rear door of the tavern appellant reached into his belt with his left hand and pulled out a blue steel revolver. A scuffle started between Muehlen-bacher and appellant, and the officer grabbed his left arm and the revolver, at which time appellant’s right arm was free and he reached around to the officer’s right side and pulled out his .357 magnum and laid it on the back of the officer’s head, then stepped back two or three steps with a gun in each hand. Muehlenbacher tried to talk appellant into going out the front door, at which time a man and a woman, customers of the tavern, walked toward appellant and were “going to try to take him.” Appellant stepped up on a landing above the two people, “and he cracked each one of them in the front of the head with the gun and split their heads open and they fell to the floor.” Appellant then backed toward the door, turned his back on Muehlenbacher and started to open the door. At that time the lady bartender threw the officer a .22 caliber revolver, which he pointed at appellant, squeezed the trigger, but it misfired. Appellant then went out and walked across the street towards the bus, from which peo-pie were getting off, and worked his way through the crowd right up onto the bus.

Grace Mein, an 18 year old student, was on the bus going from Maryville to her home in Raytown, and was sitting on its left side about halfway down. Appellant ran down the aisle, sat down beside her and pointed a gun at her side. He pointed to the police car outside and said he was wanted and they were looking for him. He told Grace that he was wanted in New York and Connecticut for armed robbery; he wasn’t afraid to use a gun; “that if I didn’t (sic) do anything or try to get away he would shoot or kill me.” Appellant pulled Grace up and to the back of the bus where there was another girl whom he told to sit down. Appellant sat in the middle, his arms “crisscrossed” with the guns on each of the girls. Officer Tom Johnson came on the bus and appellant told him he wanted a car and $100.00. Johnson got off, appellant became impatient that things were not getting done, and to show he meant business, he yelled out that he was going to blow the girls’ brains out. Johnson came back and handed Grace $100.00 and appellant told her to put it in his pocket.

Appellant’s brother then came on the bus and told him to give himself up, that is was pointless to go through with it. Appellant responded, “ * * * [H]e was through with going to prison and jails, that he didn’t want to go back anymore. He could do whatever he wanted to, but he was going to go through with it, that he would rather be shot and killed than ever go back to prison.” Appellant then told his brother to leave.

It was arranged that the bus driver drive the bus across the street and around a building so that a car could be driven alongside. The first car that was there driven alongside was not suitable — it was old and not fast enough. It was offered that Johnson would go alone with appellant but it was not acceptable to appellant because he said the girls “were his ticket out”, and it was agreed that Johnson’s car would be used, and that Johnson would also go along. Appellant told the other girl, Barbara, to get Johnson’s gun, which had been placed on a shelf, and that gun was placed in appellant’s belt. Holding guns against the heads of Grace and Barbara, the four persons got into Johnson’s car, under appellant’s threat that he would shoot the girls. Appellant said he was going to keep them until he was safely out of St. Joseph and away from the police, then he would let them go but not until he was safe. They drove around St. Joseph for awhile to get rid of the police then out on some country highway. They drove back into St. Joseph and back out again in a southerly direction toward Kansas City, and at one point Johnson stopped and talked to a policeman in a closely following police car, at which time appellant continued to hold the guns on the girls’ heads. They drove on behind a warehouse where Johnson persuaded appellant to let the girls go. They got out of the car and appellant got into the front seat with the guns. The girls walked along a railroad track which paralleled the highway, and a police car came along and picked them up.

The testimony of the other girl, Barbara Cooke, was substantially the same as Grace’s. There was no objection made, however, to her testimony about what appellant said about his past criminal life: He had been in prison in Connecticut an’d was on parole there; he had been on drugs, had done burglaries and robberies and beat up a dope dealer in New York, and stole money from him. The night before in Lincoln he had gotten the drop on the police. Johnson testified also that appellant told him he had been incarcerated or in the penitentiary, also without objection.

After the girls were released, Johnson and appellant drove away, picking up an increasing number of police squad cars with flashing red lights. As they went along, appellant unloaded two weapons, but kept the third loaded and threatened to kill Johnson with it if he tried anything. They met a police roadblock at which Johnson got out thinking he was going to be killed by the officers. Appellant was then dragged from the right side of the car by officers.

Appellant’s cases holding it to be error to admit evidence of other crimes are to be distinguished. In State v. Goetz & Martin, 34 Mo. 85 (1863), there was improper evidence of other separate crimes of shoplifting in the area of the one charged. Such also were the facts in State v. Buxton, 324 Mo. 78, 22 S.W.2d 635 (1929); State v. Griffin, 336 S.W.2d 364 (Mo.1960) and State v. Spray, 174 Mo. 569, 74 S.W. 846 (1903). None of these cases had any evidence of other crimes having a logical relation to the ones charged as would come within the here relevant exceptions to the general rule (of inadmissibility of other crimes) in State v. Reese, 364 Mo. 1221, 274 S.W.2d 304, 307 (Mo. banc 1954), “(1) motive; (2) intent; (3) * * *; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other; * * Appellant’s assault on the two customers in the Silver Dollar Tavern, done immediately prior to the kidnapping, showed his motive to escape arrest, his intent to do so, and his plan to do so, all interrelated and connected to the later crime of kidnapping which was, under the evidence, also done for the purpose of avoiding apprehension. These prior facts were a part of the res gestae of the crime of kidnapping. State v. Jackson, 519 S.W.2d 551, 558[19] (Mo.App.1975), and note the factually similar case of State v. Knigh-ton, 518 S.W.2d 674 (Mo.App.1975). There a father and son were mortally wounded by pistol shots fired by defendant. Later, in a three person kidnapping for which defendant was charged, he told the victims, “ ‘I’ve killed four people in the last two weeks,’ and T just killed two.’ ” That he “ ‘needed to get away and if [the Jarretts] tried to run or do anything he would kill them and [Traci] would be the first to be killed,’ ” pointing a pistol at the back of the child’s head and asking her parents if they “ ‘had ever seen what one of these will do?’ ” He also told them he had committed a robbery in the neighborhood. It was contended on appeal that the evidence concerning the pri- or shootings was error as being evidence of other crimes. It was held, loc.cit. 518 S.W.2d 679[4], “[I]t is patent that the shootings at the Day residence gave the defendant a motive — to avoid capture and criminal sanctions for these shootings — to commit the crimes for which he was charged. * * However, motive ‘in turn may serve as evidence of the identity of the doer of the crime on charge, or of deliberations, malice, or a specific intent constituting an element of the crime.’ ” Here, as in the Knighton case, the assaults in the tavern not only established appellant’s motive to avoid arrest, and thus his subsequent intent to kidnap the two girls to be used as hostages, but a “plan embracing the commission of two or more crimes so related to each other that proof of one tended to establish the other.” The assaults and the kidnapping were inextricably related, and were connected both in point of time and circumstances. Appellant’s statements to the girls concerning his previous criminal record and activity was not improperly admitted. Those statements, too, bore on his intent to take them as hostages, to put them in fear not to do his bidding, in his attempt to escape arrest. Neither of appellant's contentions have merit under the facts of this case.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: DIXON, Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. James ELLINGER, Defendant-Appellant.
    No. KCD 28661.
    Missouri Court of Appeals, Kansas City District.
    Feb. 28, 1977.
    Motion for Rehearing and/or Transfer Denied April 15, 1977.
    Application to Transfer Denied May 10, 1977.

      William G. Mays, II, Public Defender, Columbia, for defendant-appellant.
    John C. Danforth, Atty. Gen., J. Michael Davis, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before SWOFFORD, P. J., PRITCHARD, C. J., and DIXON, J.
   DIXON, Judge.

Defendant appeals his conviction and a court-imposed sentence of three years upon his conviction as a second offender of the offense of exhibiting a deadly weapon in a rude, angry and threatening manner. Defendant attacks the sufficiency of the evidence, the closing argument of the prosecutor as being a comment on the defendant’s failure to testify and as implying the defendant was a threat to each juror if they failed to find the defendant guilty.

The question of sufficiency is raised by the defendant’s motion in the trial court to enter a verdict notwithstanding the jury’s verdict on the grounds of insufficiency of the evidence. State ex rel. Ryan v. Holt, 499 S.W.2d 821 (Mo.App.1973). The standard set forth in Holt requires that the sufficiency of the evidence be judged upon the same basis as in ruling on a motion for judgment on acquittal at the close of all the evidence. “ ‘[T]he facts in evidence and the favorable inferences reasonably to be drawn therefrom must be considered in the light most favorable to the State, and evidence and inferences to the contrary are rejected.’ ” State v. Colton, 529 S.W.2d 919, 923 (Mo.App.1975).

So viewed, the evidence showed that the defendant and three of his friends entered a pizza restaurant and bar to play foosball in the bar portion of the premises. The manager inquired as to their ages and, upon determining that they were not 21, asked them to leave. Some discussion about their right to remain ensued, but, finally, the defendant started through the restaurant portion of the premises and on his way to the door picked up a glass and turned it over on the bar. There was some milk in the glass. The manager then approached the defendant with the glass iii his hand and, according to the manager’s version, told the defendant that he did not want him to return to the premises if he was going to behave in that fashion. The defendant then pulled a knife from his pocket which was described by the witnesses as being a hunting knife with a blade four to six inches in length, a one-piece knife made of shiny steel, contained in the defendant’s pocket within a sheath. The defendant held the knife in his hand with the point upward and towards the manager. The manager turned away from him to call the police. An off-duty assistant manager was also present, and he testified that after the manager turned his back the defendant made a motion towards the manager with the knife but that he stopped when the assistant manager touched his arm. The defendant then turned away from the manager towards the assistant manager and went into “kind of a defensive position.” The defendant then left the restaurant, his friends having preceded him.

There was proof of a prior conviction of a felony of selling controlled substances and probation upon the sentence imposed upon that offense.

The defendant’s attack as to sufficiency centers upon the weapon, the manner of its use, and the elements of the offense. As to the weapon, the defendant insists that there was no evidence that the weapon was deadly; admittedly, the information and the instruction require such a finding. Premising his argument on the statement from State v. Campbell, 507 S.W.2d 431, 433 (Mo.App.1974), “Proof of deadliness must be shown only when the weapon used is not one mentioned in the statute.” Reasoning that the statute does not mention hunting knives, defendant asserts there was no evidence to support that element of the charge. There is a two-fold answer to that argument. First, the jury was entitled to infer that a 4- to 6-inch long bladed hunting knife is capable of inflicting a deadly wound. In fact, in the archaic language of the statute, a “bowie knife” has a dictionary definition, “a large hunting knife.” Webster’s Third New International Dictionary (1966).

Second and most importantly, the defendant has overlooked the statutory language, “or other similar weapons,” and State v. Shannon, 467 S.W.2d 4 (Mo.1971) which construed the language in the context of an ordinary jackknife being by the “manner of its use” a deadly weapon. Shannon further holds that:

“The sufficiency of the evidence turns not merely upon whether the knife was itself a deadly weapon. It turns upon the evidence of how it was used, . . .”
State v. Shannon, supra, at 5.

Thus, the real issue is whether the use of the knife by defendant in the manner described in the evidence was such that the intention to utilize its deadly nature is a reasonable inference. This issue is intertwined with defendant’s second attack upon the sufficiency of the evidence in which he asserts that there is no evidence to support the adjective language of the statute, “rude, angry or threatening manner.” The State in this ease had prudently framed the information in the conjunctive since the approved instruction, MAI-Cr 13.12, directs the submission to be in the conjunctive. Because of this, prior cases which have affirmed convictions on pleading or proof of less than all three elements may not now be safely relied on as stating the law under the statute which is in terms disjunctive. See State v. Overshon, 528 S.W.2d 142, 143 (Mo.App.1975) and State v. Rice, 522 S.W.2d 656, 659 (Mo.App.1975).

Having pleaded and submitted in the conjunctive, the State has undertaken the burden of showing by appropriate evidence all of the elements of rudeness, anger and threats. Reasonably construed, the evidence viewed in the light most favorable to the verdict does show a threat by the upward pointed blade of the knife, the rudeness of the encounter, and the defendant’s apparent anger. The actions of the defendant are sufficient to support inferences supporting the submission of the elements of the offense. This evidence, when it is considered as bearing upon the manner of use of the hunting knife is also sufficient evidence of the deadliness of the weapon. Shannon, supra.

Defendant’s second ground of error is that two separate portions of the State’s argument are prejudicially erroneous. The matter is asserted as plain error under Rule 27.20. Defendant first asserts that a portion of the argument of the prosecutor is within the rule announced in State v. Shuls, 329 Mo. 245, 44 S.W.2d 94 (1931). The argument in Shuts which was held erroneous was held to be a direct reference to the failure of the defendant to testify. The substance of the argument was that there were only three witnesses including the defendant and the two other witnesses were the only ones to testify.

The argument here closely parallels that in Shuts. The State, arguing for its version of the occurrence, argued “only three” persons were in a position to “testify” as to what occurred in the confrontation between the defendant and the manager and the assistant manager. In the light of all the evidence, this could only refer to the defendant and the two witnesses for the State. The State then argued as follows:

“Bob Stevens, you heard his testimony. He told you that he asked the defendant to leave; and the defendant, that man right over there, James Ellinger, pulled a knife out of his pocket. If you don’t think holding a knife like this is rude, threatening and angry, well, I just don’t know what to say. Richard K. Havens said he came over here; and he described in detail what he saw. He said that Ellinger made kind of a half-hearted poke at Stevens.”

In its context, the jury might have construed this as a direct reference to the failure of the defendant to testify. The identification of the three who could see and the recitation of the testimony of the manager, the description of the defendant’s actions and then the recital of the evidence of the third witness make it possible that the failure of the third witness, the defendant, to testify was referred to by the argument.

Standing by itself, this argument of the prosecution would make a difficult issue under the direct reference rule as construed in State v. Rothaus, 530 S.W.2d 235 (Mo. banc 1975). The defendant in this case, however, couples the attack on that portion of the argument with another portion of the argument, which the defendant attacks as a personalization of the jury and as arousing personal hostility against the defendant. The thrust of the argument is that the various challenged arguments had a cumulative effect in denying the defendant a fair trial.

The prosecutor introduced the challenged argument by arguing that this was a crime of violence, people can “get hurt,” people can “get killed” in a situation like this in a family pizza parlor. He then asserted that:

“[W]hen James Ellinger, sitting over there, pulled that knife and backed out of that pizza parlor, he would have cut anybody that got in his way. He was fully intending to carve somebody up. You can draw the inference from the evidence that he intended to carve Bob Stevens up,

Then after a short reference to the motives of the manager in running a proper place, the argument continued:

“Now, I don’t think the people of Boone County want this kind of place to live in, I really don’t. I know I don’t. I don’t think you do, and I don’t think your friends and neighbors do. You want to be able to go out and get a pizza at night or to go to a restaurant and eat or go into a store and buy some clothes without fear of getting carved up, shot.” (Emphasis added.)

This argument clearly directed the jury’s attention to the possibility of personal harm to themselves from similar actions by the defendant if they failed to convict the defendant. An argument which arouses the personal hostility of the jurors toward the defendant, especially by implanting in them fear that acquittal of the defendant will endanger their own safety or the safety of some members of their family is erroneous. State v. Groves, 295 S.W.2d 169, 174 (Mo.1956); State v. Tiedt, 357 Mo. 115, 206 S.W.2d 524, 526 (Banc 1947); State v. Heinrich, 492 S.W.2d 109 (Mo.App.1973). Such an argument, as well as an argument directed to the failure of the defendant to testify, affects substantial constitutional rights of the defendant under Rule 27.20. Heinrich, supra, and Shuls, supra. The issue remains in this case to determine if this error in argument resulted in manifest injustice.

The evidence recited in the earlier portion of this opinion was recited in accordance with the rule respecting the sufficiency of the evidence and thus ignored the evidence favorable to the defendant and the inferences therefrom. On the issue now presented as to whether manifest injustice has appeared, the touchstone of that inquiry is a consideration of all of the evidence in the case and any other facts which may indicate the prejudicial effect of the error. There was evidence in this case by witnesses for the defendant that the occurrence in question was radically different from that described by the State’s witnesses. The companions of the defendant testified that there was no milk spilled from the glass, that the manager was angry and bellicose and that he picked up the glass which the defendant overturned and threatened the defendant with the glass, either offering to shove it down his throat or break it and cut his throat with it. There was evidence, if believed by the jury, that the defendant was at that time backed against a counter by the manager who was in great anger at the moment.

The jury in this case began its deliberations sometime around 4:00 in the afternoon; and, around 7:30 in the evening, the jurors announced by written communication that they could not arrive at a unanimous decision. The jury also sent a written communication to the court as follows: “The jury has discussed the testimony and is in conflict on what was testified by Barbara and Bob [defendant’s companions] concerning what was said by the inn manager to the defendant just prior to pulling the knife.” The court quite properly instructed the jury that it would simply have to “recall the evidence.” At 9:05, the jury was returned to the courtroom, and the court gave instruction No. 11, to which no objection was raised, which is the so-called “hammer” instruction. Shortly thereafter, the jury returned a verdict of guilty.

In these circumstances, it cannot be said that the guilt of the defendant is shown by such overwhelming and uncontra-dicted evidence that the error in the argument demonstrated above did not result in a manifest injustice to substantial rights of the defendant. In a close case such as this, the argument of the prosecuting attorney which might have been taken as a reference to the failure of the defendant to testify, coupled with his erroneous argument to the jury concerning their personal safety if the defendant was acquitted, may in the light of the jury’s uncertainty as to the defense evidence and their obvious difficulty in reaching a verdict in a relatively simple case have been the balance between either a hung jury or an acquittal instead of a guilty verdict. What was said by this court in State v. Heinrich, supra, at 116, is equally appropriate here:

“The specific and cumulative effect of this argument and the lack of proper objection to or action by the trial court resulted in an inflammatory and prejudicial atmosphere and foreclosed the possibility of a fair and impartial trial.”

The verdict and judgment must be reversed and remanded for a new trial.

All concur.


author: ANDREW J. HIGGINS, Special Judge.

text:
    STATE of Missouri, Respondent, v. Stanley W. RYUN, Appellant.
    No. 28672.
    Missouri Court of Appeals, Kansas City District.
    Feb. 28, 1977.
    Motion for Rehearing and/or Transfer Denied April 15, 1977.
    Application to Transfer Denied May 10, 1977.

      James D. Boggs, Witt & Shafer, Platte City, for appellant.
    John C. Danforth, Atty. Gen., J. Michael Davis, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ANDREW J. HIGGINS, Special Judge.

Appeal from conviction by a jury of burglary, second degree, of a dwelling house, and stealing. §§ 560.045, 560.156, 560.110, RSMo 1969. Appellant charges errors going to the sufficiency of evidence and the prosecuting attorney’s opening statement, the verdict-directing instruction, and in permitting an exhibit to go to the jury room. His contentions present, as a question of-first impression, whether the victims’ mobile home is a dwelling house within the meaning of Section 560.045, supra. Affirmed.

Euel Leonard Nix and his wife, Eleanor, reside in a house trailer or mobile home, situated on a farm in Platte County, Missouri, owned by Dr. Robert W. Butcher. They had been in such residence for three years under an arrangement with Doctor Butcher in which Doctor Butcher furnished the dwelling place and Mr. and Mrs. Nix looked after cattle and machinery on the farm. Mr. and Mrs. Nix and Doctor Butcher had keys to the trailer house; Mrs. and Mrs. Nix owned the personal property within the dwelling.

On the morning of December 4, 1975, Mr. Nix left home to go to work in Kansas City, Kansas, leaving Mrs. Nix at home. He received a call at 4:30 p.m., advising that his home had been broken and entered. When he arrived home, police officers and his wife were present. He noticed a glass broken in the front door, and his belongings were “pretty well messed up.” His television set, a Philco 27" console, was sitting in an unusual place. It was not connected to the electrical circuit and the lead wire to the rooftop antenna had been torn apart. Further check revealed the loss of a pair of binoculars. He was unacquainted with anyone named Hoisted or Ryun and had given no one permission to enter his home and take his property.

Mr. Nix identified a photograph, Defendant’s Exhibit D, as depicting, among other things, the trailer house or mobile home in which he and Mrs. Nix resided. It is a typical mobile home, detached from the tow vehicle by which it may be moved. It has a “skirt” from the floor level to the ground to block, air passage under the floor, and is connected to an electricity transmission line.

Mrs. Nix described her home as a living room, containing divan, television, two end tables, three lamps, coffee table, and desk; kitchen, containing refrigerator, stove, sewing machine, table, and chairs; their own bedroom; and a second bedroom which they did not use. There was a door at each end of her home.

On December 4, 1975, she left home around 1:00 or 1:30. Doctor Butcher and his assistant, Miss Herman, were at the barn. She locked her home when she left; her television set was in place, connected to the electricity; the front door glass was intact except for a crack in the corner.

Mrs. Nix returned home after 3:00 or 3:30 p.m. Glass from the front door was on the floor, the television set had been moved, and her home had been ransacked. She also missed the binoculars on the day following the burglary. She also was unacquainted with Stanley Ryun, and had not given him or anyone else permission to enter her home.

Robert W. Butcher, M.D., resides in Clay County, Missouri, practices medicine in Kansas City, and is the owner of a farm in Platte County. Mr. and Mrs. Leonard Nix reside on the farm in a house trailer which he purchased and had delivered and parked on his farm in October, 1972. Mr. and Mrs. Nix owned the personal property in the trailer home, and he and Mr. and Mrs. Nix had keys to the home.

Around noon on December 4,1975, Doctor Butcher and his technician, Jeanne Herman, arrived at the farm. While around one of the barns, he observed a youngster in a blue coat run from the house trailer and jump into a bronze Chevrolet Nova. In his own automobile, he followed the Nova, noticed that the trunk was open, and that a “wide T.V.,” the Nixes’ T.V., was “upside down in the trunk.” He continued to follow the Nova out of the farm and onto the road and succeeded in stopping the Nova. He attempted to persuade the vehicle and its occupants to accompany him to a cafe operated by Deputy Sheriff Troy McClanahan and his wife, and did persuade them to return to the farm. Upon arrival at the farm, defendant Stanley W. Ryun and an adult companion, Floyd Hoisted, removed the T.V. from the car, disappeared around the corner, and carried the T.V. into the trailer house. Defendant attempted to persuade Doctor Butcher to let them go because the incident was a mistake. He kept the occupants of the Nova under surveillance at gunpoint and called the deputy sheriff. Officers ultimately arrived and arrested defendant, Hoisted, and Holsted’s juvenile son.

The officers described the arrest, the location of the television set in the Nix home, and the general disarray of the home.

Appellant contends (I) that the court erred in failing to enter a judgment of acquittal “in that the evidence of the state * * * established that the purported unlawful entry was into a trailer and not a dwelling house and, accordingly, it was impossible as a matter of law for the defendant * * * to be found guilty of burglary not in the first degree [burglary, second degree] of a dwelling house.” He argues that because the structure in evidence was a “trailer,” breaking and entering such structure would be tampering with a motor vehicle of a type subject to licensing under Section 301.010(29), RSMo Supp.1975, in violation of Section 560.175, RSMo 1969, rather than burglary, second degree, of a dwelling house.

Elements of the statutory offense of burglary, second degree, are breaking and entering a dwelling house with intent to commit a felony or steal therein. State v. Brunson, 516 S.W.2d 799, 801[1] (Mo.App. 1974).

“At common law and under statutes declaratory thereof * * * a dwelling house * * * may be generally defined as any kind of structure used as a place of habitation and occupied by persons other than defendant.” 12 C.J.S. Burglary § 17, p. 678. The terms commonly used to indicate the place subject to burglary, second degree, are dwelling or dwelling house. The word “dwelling” imports a human habitation and, as a matter of common law, burglary, second degree, “is strictly an offense against the habitation.” Perkins on Criminal Law (Second Edition), p. ' 200. “The breaking and entering, to constitute a burglary, must be ordinarily into the dwelling-house of another; that is to say, a house in which the occupier and his family usually Reside, or, in other words, dwell and lie in.” Wharton’s Criminal Law, Ninth Edition, Vol. 1, § 781. See also State v. Huffman, 136 Mo. 58, 37 S.W. 797 (1896); and see State v. Auger, 434 S.W.2d 1, 5 (Mo.1968), to effect that a place regularly used as one’s abode is his dwelling house for purposes of burglary.

In Missouri, “the term ‘dwelling house’ is not defined by the [burglary] statutes. At common law it included any place with some degree of permanency in which one or more persons resided * * *. Whether * * * one room of a building [or a building itself] regularly occupied by a person constitutes a dwelling house under those burglary statutes which use the term in the common law meaning depends upon the use to which the room [or building] is put. * * applying this test it has been uniformly held that one room of a larger building [or the building itself], when in fact used as the place of abode or living quarters of an individual, may constitute a dwelling house.” State v. Jones, 365 S.W.2d 508, 512 (Mo.1963).

The structure in question, a typical mobile home building, was placed on the farm by Doctor Butcher in October, 1972. It was detached from its tow and has not been since moved. Mr. and Mrs. Nix made it their sole place of abode and living quarters for three years. The building has front and back doors, equipped with locks, and consists of furnished living room, kitchen, bath, bedroom, and a spare bedroom. In addition to a television set, other electrical appliances are in the home operating off an electricity transmission line. The building is “skirted” from floor to ground to block air circulation and drafts. It is the place of habitation of Mr. and Mrs. Nix and they have occupied it with the intent to exclude defendant.

Under the authorities, the foregoing facts and circumstances demonstrate that the mobile home in evidence was the “dwelling house” of Mr. and Mrs. Nix within the meaning of Section 560.045, supra. See also Luce v. State, 128 Tex.Cr.R. 287, 81 S.W.2d 93 (1935), where a cabin constructed on an automobile chassis was a “private resi-0 dence” within statute denouncing burglary of a private residence at night; and State v. Ebel, 92 Mont. 413, 15 P.2d 233 (1932), where a movable sheep wagon occupied by a sheep herder as his dwelling house constituted a “house” and “building” within the burglary statute.

Whether a trailer must be licensed for use on the public highways and whether interfering with a trailer in some manner may be tampering with a motor vehicle are not relevant to the present inquiry.

Appellant contends (II) that the court erred in failing to enter a judgment of acquittal “as to the prosecution for stealing and burglary” in that “the evidence only established that defendant * * * was present at the scene * * * and may have assisted in the return of property but failed to establish that the defendant * * participated in the purported crime.” See, e. g., State v. Eye, 492 S.W.2d 166 (Mo.App.1973); State v. Irby, 423 S.W.2d 800 (Mo.1968), where the evidence, circumstantial and otherwise, showed only that defendant was in close proximity to another or others who may have committed an offense.

The evidence against defendant in the offenses against the dwelling house and property of Mr. and Mrs. Nix is sufficient to show his participation as opposed to “mere presence” at the scene.

Defendant was a passenger in the automobile observed departing the crime scene at the Nix home. The automobile was small, and a color television console identified as the property of Mr. and Mrs. Nix protruded from the trunk of the automobile. When apprehended at some distance from the crime scene, the occupants returned and defendant-and Hoisted carried the television set into the trailer. He attempted to persuade Doctor Butcher to treat the matter as a mistake or misunderstanding because no harm had been done. Defendant had no permission to enter the Nix home or to take their property. Entry to the home had been gained by breaking a glass in the front door of the home, and the interior was in disarray. For a similar case, see State v. Cobb, 444 S.W.2d 408 (Mo. banc 1969), where the bulk and nature of the stolen property bore on the manner in which it was possessed by defendant jointly with others. Note also that possession of property stolen in a burglary is evidence connecting defendant with the burglary and in the absence of countervailing evidence is sufficient to sustain a burglary conviction, State v. Lewis, 482 S.W.2d 432 (Mo.1972); and that unexplained possession of stolen property, together with evidence of burglary, is sufficient to support a conviction of burglary and stealing, State v. Grey, 525 S.W.2d 367 (Mo.App.1975).

Appellant charges the court erred (III) in giving Instruction No. 8 “which recited that the defendant could be found guilty of burglary of a dwelling house * * if they found that the defendant broke and entered into a dwelling place * * * f0r the reason that the applicable penal statute does not proscribe * * * breaking and entering into a dwelling place but rather the breaking and entering of a dwelling house and * * * defendant was thereby deprived of a defense in that the jury was never required to find and believe * * * that the trailer purportedly broken into was a dwelling house * *

It has been demonstrated that defendant did break and enter the “dwelling house” of Mr. and Mrs. Nix within the meaning of the burglary statutes. Appellant concedes that Instruction No. 8 is in the form of MAI—CR 7.22. Although using the term “dwelling place” instead of the statutory term “dwelling house,” MAI-CR 7.22 is required for submission of burglary, second degree, of a dwelling house under § 560.045, supra. Rule 20.02(c), V.A.M.R. “Dwelling place” is the equivalent of “dwelling house.” State v. Auger, supra.

Appellant charges the court erred (IV) in overruling his motion for dismissal “for the reason that the State failed in its opening statement to state those facts to be offered as proof which, if believed, would establish a prima facie case * * He asserts there was no statement that consent had not been given to defendant or anyone else as to the taking of any property, or to indicate that a “dwelling house” was broken and entered.

A prosecuting attorney is required by Section 546.070 RSMo 1969, to state the case. The purpose of the requirement is to advise the jury of the facts which the state intends to prove and so inform the defendant as to enable him to meet the accusation. State v. Masters, 530 S.W.2d 28, 30 (Mo.App.1975). It is not, however, a test of the sufficiency or competency of evidence. State v. Fleming, 523 S.W.2d 849, 852 (Mo.App.1975); its scope and extent lies in the discretion of the trial court, State v. Fenton, 499 S.W.2d 813, 816 (Mo.App.1973), and the court does not err in refusing to dismiss upon opening statement where the prosecuting attorney makes “no admissions or statements from which it necessarily followed that the state’s proof would be insufficient to sustain the charge.” State v. McAllister, 468 S.W.2d 27, 29 (Mo.1971).

Appellant does not contend that the prosecuting attorney admitted the State out of court. With respect to the matter of consent, the record shows the prosecutor said, “We will then call Mr. and Mrs. Nix, who will testify that at no time on the 4th day of December, 1975, did they ever give permission or consent to Stanley Ryun or anyone else to enter * * * on the farm property [or] * * * in their trailer house.” With respect to the matter of burglary of a dwelling house, the prosecuting attorney stated the “responsibility of the State * * * to prove beyond a reasonable doubt that in fact on December the 4th, 1975, * * * Stanley Ryun did forcibly break and enter * * * into a dwelling house, a trailer house occupied by Mr. and Mrs. E. Nix, and he then and there took property, a colored television set and a pair of binoculars.”

Appellant charges the court erred (V) in permitting the television set, State’s Exhibit 11, to be taken to the jury room during deliberation “for the reason that the jury was thereby allowed to consider facts not in evidence through experimentation during the deliberation * * *.”

As the jury was retiring, one juror asked if it was permissible for the jury to examine the television set. After the jury retired, the court determined that the television set, which was on rollers, could be delivered to the jury room.

Appellant concedes that the jury may have exhibits in a case in the jury room during deliberation in the discretion of the trial court. State v. Arrington, 375 S.W.2d 186 (Mo.1964); State v. Jordan, 532 S.W.2d 776 (Mo.App.1975). He argues that the court abused such discretion because the request “implied that the juror intended to experiment” with the exhibit “and thereby direct to the jury’s attention facts not in evidence * * *.”

The television set was in evidence and before the jury during the trial, and the alleged vice in permitting it to go to the jury room rests on speculation of some improper experiment. Such assertion does not indicate the court’s discretion was an untenable act or so against reason that it worked an injustice. State v. Connell, 523 S.W.2d 132, 138 (Mo.App.1975).

Judgment affirmed.

All concur.


author: WEIER, Judge.

text:
    Anthony RANCHER, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 38299.
    Missouri Court of Appeals, St. Louis District, Division One.
    March 1, 1977.
    Motion for Rehearing or Transfer Denied March 15, 1977.
    Application to Transfer Denied May 10, 1977.
    James C. Jones, III, St. Louis, for mov-ant-appellant.
    John D. Ashcroft, Atty. Gen., Preston Dean, David L. Baylard, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., James A. Roche, Jr., Asst. Circuit Atty., St. Louis, for respondent.
   WEIER, Judge.

This appeal is taken from the denial, without evidentiary hearing, of movant’s Rule 27.26 motion to vacate or set aside his convictions of second degree murder, assault with intent to kill with malice, and first degree robbery by means of a dangerous and deadly weapon. After entering his pleas of guilty to all three offenses, movant was sentenced to terms of thirteen years imprisonment for each offense, the sentences to run concurrently. Movant is currently serving these sentences at the Missouri State Penitentiary.

The point raised by movant on this appeal is that the court erred in denying his motion without an evidentiary hearing since the files and records of the case demonstrate that his pleas of guilt were involuntary due to his failure to receive adequate notice of the offenses to which he pleaded guilty. The point is not preserved for our review because it is not specifically raised in the Rule 27.26 motion. Quinn v. State, 515 S.W.2d 603, 607[9] (Mo.App.1974).

The judgment is affirmed.

CLEMENS, P. J., and DOWD, J., concur.

      . A review of the motion indicates that it was couched in conclusory allegations unsupported by facts. To be entitled to an evidentiary hearing, movant must plead facts which, if true, would entitle him to relief and which are not refuted by facts elicited at the guilty plea hearing. Smith v. State, 513 S.W.2d 407, 410[1] (Mo.banc 1974).


author: FLANIGAN, Judge.

text:
    Frank A. HUDSON, Plaintiff-Appellant, v. Herbert MARSHALL et al., Defendants-Respondents.
    No. 9959.
    Missouri Court of Appeals, Springfield District.
    March 4, 1977.
    Motion for Rehearing or Transfer Denied on March 28, 1977.
    Application to Transfer Denied May 10, 1977.

      Charles A. Werner, St. Louis, for plaintiff-appellant.
    L. D. Joslyn, Philip R. Pruett, Jeffrey C. Vaughan, Joslyn, Joslyn & Vaughan, Charleston, for defendants-respondents.
   FLANIGAN, Judge.

This non-jury action was instituted by Frank A. Hudson against defendants, who are members of the Board of Education of Charleston R-I School District. Plaintiff, a former employee of the school district, sought reinstatement to his former position, back pay, and other damages. The petition was in two counts. Count I was based upon violations of certain rights allegedly held by plaintiff as a “permanent teacher” holding an “indefinite contract” under the provisions of the Teacher Tenure Act. (§§ 168.-102 to 168.130 V.A.M.S.) Count II was based upon alleged violations of plaintiff’s rights under the federal and state constitutions. The trial court denied plaintiff relief on both counts and plaintiff appeals. This court affirms.

Plaintiff’s employment by the board commenced on March 1, 1966, and ended in August 1972. His initial contract was for a period of four months commencing March 1,1966. Thereafter he received annual contracts commencing on July 1 of each year. His first annual contract commenced July 1, 1966. Except for the periods, the years involved, and the salary amounts, his contracts for his original four-month period and for the school years 1967 — 68, 1968-69, and 1969-70 were substantially in the same form. That form bore the caption “Teacher’s Contract.” It referred to Hudson as “a legally qualified public school teacher.” It stated that Hudson “agrees to teach the public school of said district for the term of twelve months.”

The contract for the school year 1970-71 was entitled “Teacher’s Employment Contract.” It referred to Hudson as “the teacher.” It provided that “the teacher agrees to teach in the public schools of said district” for the school year. It included this provision: “As a condition to employment by the Board, the Teacher agrees to obtain prior to the first day of service hereunder and to have at all times during the term of this contract a valid certificate of license to teach in the public schools of the State of Missouri.” Plaintiff’s final contract, that for the school year 1971-72, was in the same form except for the year involved and the amount of compensation.

Although plaintiff’s earlier contracts did not contain an express provision that certification was a condition of his employment, Superintendent Wells, a witness for the defense, testified on direct examination that plaintiff was required to have a license.

As plaintiff’s excellent brief points out, the validity of Count I hinges upon the issue of whether plaintiff was a “permanent teacher” within the meaning of § 168.-104(4) V.A.M.S.

Those portions of § 168.104 which are germane to this action include the following:

‘168.104 Definitions.
The following words and phrases when used in sections 168.102 to 168.130, except in those instances where the context indicates otherwise, mean:
(3) ‘Indefinite contract1, every contract heretofore or hereafter entered into between a school district and a permanent teacher;
(4) ‘Permanent teacherany teacher who has been employed or who is hereafter employed as a teacher in the same school district for five successive years and who has continued or who thereafter continues to be employed as a full-time teacher by the school district. .
(7) ‘Teacher , any employee of a school district, except a metropolitan school district, regularly required to be certified under laws relating to the certification of teachers, except superintendents, assistant superintendents, and any other persons regularly performing supervisory functions as their primary duty.”
Count I of the petition alleged, in essence: plaintiff was employed by the board from February 15,1966, until June 30,1972; the written contracts previously referred to had been executed; “plaintiff’s duties under said teacher’s contracts was (sic) coordinator of federal programs for the Charleston R-I School District”; under the terms of the contracts plaintiff was required to have “a valid license to teach in the public schools for the State of Missouri” and he was at all times so licensed; at all times after February 15, 1971, plaintiff was a “permanent teacher” within the definition of § 168.104(4) and “as a permanent teacher an indefinite contract existed between plaintiff and defendants under RSMo 168.-104(3) and 168.106”; the termination of his contract by defendants was not done in accordance with § 168.116.

In order to support the cause of action contained in Count I, it was incumbent upon plaintiff to prove the existence of an “indefinite contract.” This required proof that plaintiff was a “permanent teacher.” Proof that he was a “permanent teacher” necessitated proof that he was a “teacher.”

Thus the initial inquiry is, was plaintiff an “employee of a school district . regularly required to be certified under laws relating to the certification of teachers”?

Plaintiff, who was 60 years old at the time of trial, obtained a Bachelor of Arts Degree from Southwest Missouri College in 1937. In 1949 he received a Master’s Degree from George Peabody College for Teachers, Nashville, Tennessee. Thereafter, he took graduate courses at three universities. He has had a Missouri public school teacher’s certificate continuously since 1937 and at least since September, 1969, it has been a lifetime certificate. His certificate authorizes him to teach in the positions of “elementary grades,” social studies (secondary schools), elementary principal, and secondary principal. During his period of employment by the board his certificate was on file with the clerk of the district.

Prior to 1966, plaintiff was employed in other Missouri and out-state school districts in various capacities, including sixth grade school teacher, elementary principal and high school principal. On February 24, 1966, the Charleston Board adopted a motion that “Frank Hudson be contracted at a salary of $9,500 as Curriculum Supervisor for federal programs.” Minutes of board meetings held in subsequent years listed Hudson among “the following administrators” to whom annual contracts were to be offered.

It was plaintiff’s testimony that at no time during his employment by the Charleston Board did he have the title of superintendent, assistant superintendent, elementary principal, or secondary principal. He was initially hired by the board “to make a survey in the curriculum area.” In July 1966, when Thomas Wells became superintendent, Wells assigned plaintiff, under the authority of the board, “to become familiar with the various federal education programs under the Civil Rights Act of 1964, and to prepare proposals for the school district under Title I through Title VI of the Civil Rights Act.” The trial court found that throughout his employment plaintiff’s activities were confined to those duties.

Plaintiff’s duties included discussing the various programs with Superintendent Wells, filling out forms for the programs, submitting them to Wells for corrections, and thereafter submitting them to governmental authorities. Plaintiff’s work also included the preparation of the budget for “these various federal programs." The budget included salaries for teachers and administrators. Plaintiff’s salary was included in the salaries for administrators.

Unlike classroom teachers, plaintiff did not fill out absentee reports when he was absent from his work on occasion. It was his testimony that in his position he could and did “leave the campus pretty well whenever I wanted to during the school day.” Although the evidence showed that all teachers were placed on a salary schedule, there was no relationship between plaintiff’s salary and the teachers’ salary schedule. Like classroom teachers, however, plaintiff received a monthly salary check from the school district and from that check a deduction was made for hospital insurance “arranged by the Missouri State Teachers Association.” Another deduction from plaintiff’s check was for “Missouri State Teachers Retirement” to which the state made matching contributions.

Among the exhibits introduced were copies of letters which plaintiff had written to government officials in which plaintiff described his own position as “Administrator and Supervisor, Title I Projects, PL 89 — 10.” Plaintiff, however, minimized the degree of his contact with other employees of the school system, including teachers. Although one governmental form recited that plaintiff’s duties included “day to day supervision of Title I staff,” it was plaintiff’s testimony that “I did not do that.” He said he did not do any supervision of the Title I staff, day to day or otherwise.

Plaintiff was not assigned to a classroom and did not, at least in the usual sense, teach or have contact with students. It was plaintiff’s testimony that he did not hire, terminate, transfer, assign, evaluate, promote, discipline, or reward any teachers, nor was he responsible for their work. Plaintiff’s office was located in the central office building which also contained the offices of the superintendent, the assistant superintendent, the meeting room of the board, and two stenographers. Plaintiff did no supervision of the classroom teachers, that supervision being done by the principal.

On April 13, 1972, plaintiff appeared before the board to present some of his “proposals.” After plaintiff left the meeting, the board voted “that Frank Hudson not be rehired for the 1972-73 school year.” On April 14, 1972, Superintendent Wells gave written notice to the plaintiff that he had not be.en rehired. The board gave plaintiff no reasons for his not being reemployed. The termination procedures prescribed by § 168.116 were not carried out. Terry Rowe, a classroom teacher in the system, was “reassigned as coordinator of special programs” and assumed the duties formerly performed by plaintiff.

Evidence offered by defendants showed that the same contract forms which contained plaintiff’s agreements were used in the hiring of all other “certified personnel” “whether they were a teacher or administrator or whatever.”

Plaintiff devotes most of his briefs to his contention that he was not within the third category mentioned in the exception to the definition of “teacher” contained in § 168.-104(7). That third category consists of “any other persons regularly performing supervisory functions as their primary duty.” Plaintiff’s brief states that plaintiff not only did not “supervise teachers; he was told explicitly by Superintendent Wells that he was not to supervise teachers and there was no evidence or testimony that plaintiff supervised any teachers.” Plaintiff also insists that “persons who supervise a program” are not within the excluded category. Finally, plaintiff argues, he “did not have any of the duties, tasks or responsibilities which normally constitute the term ‘supervise.’ ”

Such assertions, advanced in support of plaintiff’s argument that he was not a member of the excluded category, tend to undermine his contention that he was within the general class itself, that is the class embraced by the statutory definition of “teacher” prior to the application of the ternary exception.

In resolving the issue of whether plaintiff was a “teacher” as defined in § 168.104(7), this court may consider “the general school laws, laws dealing with special school subjects, school laws enacted at the same time or on widely different dates, school laws once in force and later repealed, and contemporary history of those enactments.” Lemasters v. Willman, 281 S.W.2d 580, 584[1] (Mo.App.1955). “Various provisions of a legislative act should be construed together and harmonized if possible.” Spitcaufsky v. Hatten, 353 Mo. 94, 133, 182 S.W.2d 86, 110[64] (banc 1944). With an exception not applicable here, § 1.090 requires, in the construction of statutes, that “words and phrases shall be taken in their plain or ordinary and usual sense.” When the language of a statute is unambiguous and conveys a plain and definite meaning, the courts “have no business foraging” among the rules of statutory construction to look for or impose another meaning. DePoortere v. Commercial Credit Corp., 500 S.W.2d 724, 727[1] (Mo.App.1973).

Cases decided under Teacher Tenure Acts in other jurisdictions are of little assistance in view of differing statutory terminology.

Because plaintiff was an employee of the school district, he meets the first requirement of the statutory definition of “teacher.” But was plaintiff “regularly required to be certified under laws relating to the certification of teachers”? Plaintiff’s petition alleged and his briefs emphasize that plaintiff’s contracts “required plaintiff to have and maintain a valid certificate of license to teach in the public schools of the State of Missouri.” He assumes that the source of the “requirement,” within the meaning of the statute, may be this specific school board, through the contracts which he signed, some of which, as previously pointed out, recite that “as a condition to employment by the board, the teacher agrees” to obtain and have “a valid certificate of license to teach.” This court disagrees with that assumption.

If the presence of the “requirement” element were satisfied by the fact that this specific school board imposed it, a lack of uniformity might develop throughout this state with regard to who are “teachers” within the meaning of the Act. For example, Section 168.104(5), a part of the Teacher Tenure Act, gives certain rights to “probationary teachers.” It provides, in part:

‘Probationary teacheP, any teacher as herein defined who has been employed full time in the same school district for five successive years or less. ... In the case of any probationary teacher who has been employed in any other school system as a full-time teacher for two or more years, the board of education shall waive one year of his probationary period.”

Assume that School Board A has an opening for a position performable by a person not having the professional talents evidenced by a certificate. School Board A, however, makes it a condition of employment that the position be filled by a person having a certificate. Assume further that School Board B has a similar opening but does not require that the applicant have a certificate. School Board B fills the position with a person who does have a certificate. If plaintiff’s argument be sound, the employee of School Board A would be a “teacher” while the employee of School Board B would not be a “teacher.”

If the hypothetical employee of School Board A, having been employed two or more years, entered the employment of School Board C, School Board C, under § 168.104(5) must “waive one year of his probationary period.” But if the hypothetical employee of School Board B, having been employed for two or more years, entered the employment of School Board C, no such waiver is mandated. It seems unlikely that the legislature would have intended such confusion or lack of uniformity.

Section 168.106 of the Teacher Tenure Act deals with six matters which affect the continuation of an indefinite contract. One such matter is “compulsory or optional retirement when the teacher reaches the age of retirement provided by law, or by regulation established by the local board of education.” This is one instance where the policy of a local board was considered by the legislature and specific provision was made therefor. When the legislature felt that retirement could be something provided by law or provided by local regulation, it specifically said so. But in the statute under scrutiny, § 168.104(7), there was no reference to such individual board policy.

If plaintiff’s construction of the statute were correct, the pertinent language of the statute could easily have read “regularly required by the local board of education to be certified under laws relating to the certification of teachers.” Several other portions of the Teacher Tenure Act which vest powers in the board or contemplate board action make specific provision therefor.

If “regularly required to be certified under laws relating to the certification of teachers” refers to a requirement imposed by a school board, and not by the law itself, could not a school board evade its responsibilities under the Teacher Tenure Act by the simple expedient of not inserting such a requirement in its teacher contracts? Or could it, as a matter of whim, insert the requirement in contracts for some teachers, those on whom it wished to confer tenure rights, and omit the requirement in the contracts given to teachers who, but for the omission, would enjoy the benefits of tenure? Could the school board, with regard to the same teacher, insert or withhold the requirement from year to year depending upon its attitude toward that person? It is not reasonable to believe that such results were within the legislative intention.

The “laws relating to the certification of teachers” include §§ 168.011 and 168.021. Section 168.011 forbids the employment of a person to teach in any position in a public school until he has received a valid certificate entitling him to teach in that position. Neither in the trial court nor in this court has plaintiff claimed that the duties which he performed for the school district were such that they came within the command of § 168.011. Plaintiffs certificate authorized him to teach in the position of elementary grades, social studies (secondary schools), elementary principal, and secondary principal. Plaintiff has not claimed that the duties which he performed for the school district lay within any of these four classifications.

It seems clear that the language “regularly required to be certified under laws relating to the certification of teachers” is not satisfied merely because the employee is in fact certified, that is, possesses a certificate. If that were so, the language “regularly required to be” would be sur-plusage. Moreover, § 168.101 V.A.M.S. (enacted Laws 1973, p. 277, § 1) gives certain employment rights to “legally certificated teachers not employed as superintendent of the district and not eligible under § 168.104 RSMo 1969, to gain permanent status or tenure in the position held within the school system." This clearly indicates that an employee could be a “legally certificated teacher” and still, prior to the enactment of § 168.101 in 1973, not be eligible under § 168.104 to gain permanent status or tenure in the position held.

This court holds that the language “any employee of a school district . regularly required to be certified under laws relating to the certification of teachers,” as used in § 168.104(7), refers to an employee holding a position of the type mentioned in § 168.011, that is, a public school position in which the person was employed to teach. The source of the “requirement” is the law itself, the “laws relating to the certification of teachers,” and not the specific school board nor the specific employment contract.

Although § 168.104 defines “teacher” it contains no definition of the word “teach.” Section 168.011, quoted in footnote 8, uses the word “teach” but does not define it. Webster’s Third International Dictionary defines “teach” as “to cause to know a subject ... to direct as an instructor . to impart the knowledge of . to direct, instruct or train by precept, example or experience. . . .” The same authority says that it is synonymous with “instruct, educate, train, discipline, school, coach, tutor.”

If plaintiff’s position were such that it could properly be said he was “teaching in it,” as § 168.011 contemplates, whom did he teach? Did he cause anyone to know a subject? Did he cause anyone to know how to do something? Whom did he direct, instruct or train? Plaintiff had no contact with the students and his contact with the teachers was, according to his testimony, most limited. He said he did no supervision of them, nor did he do any “supervision of the Title I staff.” His duties, as the trial court found, were confined, at least primarily, to becoming familiar with the various federal programs and preparing proposals for the school district pursuant to the pertinent federal statutes. Such duties involved no teaching of another person. In so stating this court does not intend to discount the significance of plaintiff’s position. No doubt it required the patience to peruse and the capacity to comprehend the plethora of regulations which presumably underlay the federal programs. But any element of teaching involved was that of self instruction.

So far as the word “regularly” is concerned, it appears twice in § 168.104(7). Its first use is to modify the word “required” in the phrase under consideration. Its second use is in the exception dealing with “superintendents, assistant superintendents, and any other persons regularly performing supervisory functions as their primary duty.”

Synonyms for the word “regularly” include “customarily,”- “normally,” and “usually.” The American Heritage Dictionary of the English Language. Webster’s Third International Dictionary indicates that the word “regularly” is also synonymous with “correctly,” “properly.” Because the second use of the word “regularly” in the statute seems more likely to have been used in the first sense, that is, as being synonymous with “customarily,” “normally,” “usually,” that may lend weight to the argument that its use in the first instance was with the same meaning. In its first use the word modified the word “required” rather than the word “certified.” Had it modified the word “certified” it would probably be sound to equate it with the word “properly” or “correctly.” Since persons employed by school boards do not always do the same work throughout their employment, that is, some of their duties may involve teaching and some may not, it may well be that the word “regularly” was inserted in the statute to include within its definition those persons who, although not always filling positions requiring teaching certificates under § 168.011, usually fill such positions. Thus an occasional or sporadic assignment of a teacher to non-teaching duties would not disqualify him so long as his usual and customary duties required certification.

This court holds that plaintiff was not “regularly required to be certified under laws relating to the certification of teachers.” Accordingly he was not a “teacher” within the meaning of § 168.-104(7). The trial court properly denied him relief on Count I of the petition.

Count II of the petition, which incorporated the allegations of Count I, also alleged that plaintiff “had a legitimate expectation of continued employment, absent sufficient cause, . . . under the customs, policies and practices of the Charleston R — I School District”; that defendants “by refusing to grant plaintiff a hearing prior to or after his termination violated plaintiff’s rights to due process”; that defendant’s “termination of plaintiff’s indefinite contract has substantially impaired plaintiff’s ability to find other employment in the educational field”; and that, despite diligent efforts, plaintiff has been unable to obtain such employment.

Count II also alleged that plaintiff’s employment was terminated “because he spoke against the termination of a fellow teacher.” There was, however, no proof in support of this allegation nor is it mentioned in plaintiff’s briefs.

In support of his assertion that the trial court erred in denying him relief on Count II, plaintiff points to the evidence concerning his professional background, his employment by the Charleston Board, the termination of that employment “without any reason or charges,” and the fact that he was then 58 years old. Plaintiff then argues that his non-retention, coupled with his age, deprived him “of his ‘liberty’ by foreclosing his freedom to remain in the educational field” and deprived him of “a ‘property’ interest in continued education.”

It should be noted that this case does not involve a “mid-term dismissal,” as was the situation in Valter v. Orchard Farm School District, 541 S.W.2d 550 (Mo.1976) and the principles enunciated therein are inapposite. In the case at bar plaintiff was not discharged during the school year for which he had been employed. He served the full period of his employment, received full compensation therefor, and merely was not reemployed for the following year.

Plaintiff places his primary reliance upon two decisions of the Supreme Court of the United States, Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), and Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972).

In Roth the court held that procedural due process applies only to the deprivation of interests encompassed within the Fourteenth Amendment’s protection of liberty and property and that the range of such interest is not infinite; that procedural due process protects only those interests that a person has already acquired in specific benefits; that Roth was not deprived of an interest in “liberty” for in declining to reemploy him, Roth being a non-tenured teacher, the state did not impose on him any stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities; that Roth was not deprived of an interest in “property” because his contract provided that his employment was to terminate at the end of the academic year, and he thus had no interest protected by the Fourteenth Amendment in reemployment for the next year; accordingly, Roth was not constitutionally entitled to a statement of reasons or to a hearing on the decision not to rehire him.

In Sindermann the court held that Sin-dermann’s lack of a contractual or tenure right to reemployment, taken alone, did not defeat his claim that nonrenewal of his contract violated his constitutional rights. The court pointed out that Sindermann claimed that the college which employed him “had a de facto tenure program and that he had tenure under that program.” The holding was that Sindermann should have been afforded the opportunity to prove the existence of such “de facto tenure.” Such proof, said the court, would not entitle Sindermann to reinstatement but would obligate the college officials to grant a hearing at his request whereby he could be informed of the grounds of his non-retention and challenge their sufficiency.

The evidence does not support, and plaintiff’s brief does not claim, that there was evidence in this case of a “de facto tenure program” of the type mentioned in Sinder-mann. Similarly lacking is any claim by plaintiff that defendants made any charge against him that might “seriously damage his standing and associations in his community” as mentioned in Roth. Indeed plaintiff stresses that there were “no charges” made against him.

Although plaintiff argues that he failed to obtain other employment in his profession by reason of his age and “non-retention,” there is no evidentiary support for that assertion. Plaintiff did testify that he sought employment at other educational institutions, and that the application forms required him to state why he was no longer employed by the Charleston School District, but he offered no testimony showing what “reasons” he stated in the application nor did he show that the statement of them, whatever they may have been, coupled with his age, had anything to do with his limited success in obtaining other employment. There was no evidence that plaintiff had to state his age in the employment application.

Plaintiff has failed to demonstrate that the failure of the board to reemploy him was occasioned by plaintiff’s exercise of any of his constitutional rights. Additionally, plaintiff has failed to show that his non-retention, alone or in conjunction with his age, had any effect upon his efforts to obtain other employment in his chosen profession.

The trial court properly denied plaintiff relief on Count II of the petition.

The judgment is affirmed.

All concur.

      . All statutory references, unless otherwise stated, are to RSMo 1969 V.A.M.S.

      . The transcript does not show why plaintiffs employment continued until August 1972. The petition alleged that plaintiff’s employment ended on June 30, 1972.

      . Charleston R-I School District is not a “metropolitan school district.”

      . § 168.116, in general, requires service upon the teacher of a written statement of the grounds for termination, entitling the permanent teacher to request a hearing thereon.

        § 168.114 sets forth six causes “except for one or more” of which an indefinite contract with a permanent teacher shall not be terminated. § 168.118 sets forth the procedure for the termination hearing. § 168.120 gives “the teacher” the right to appeal from the decision of the board.

      . When asked by his counsel if he did any teaching during his employment by the school board, plaintiff replied that he did some teaching at “one workshop.” Apparently this was a reference to an isolated incident where plaintiff addressed some teachers with regard to Title VI “which involved training aids.”

      . E. g. Nagy v. Board of Education of School Dist. No. 28J, 31 Colo.App. 45, 500 P.2d 987 (1972), holding that a social services consultant, although possessing teacher’s certificate, was not entitled to tenure.

      .Other sections of the Teacher Tenure Act make reference to the “written consent of the school board,” § 168.106(4); “termination by the board of education,” § 168.106(5); “the board of education of a school district may modify . . .,” § 168.110; “salary schedule adopted by the board of education,” § 168.-110(2); “written standards of performance . adopted by the school board,” § 168.-114.2; and “a board of education may establish policies for granting leave of absence . .,” § 168.122.

      . Section 168.011 provides: “No person shall be employed to teach in any position in a public school until he has received a valid certificate of license entitling him to teach in that position.”

      . Section 168.021 provides for the granting of “certificates of license to teach in the public schools of the state.” In its present form (amended by Laws 1973, p. 230, § 1, effective July 1, 1974) the “certificates of license” are granted by the State Board of Education, “under rules and regulations prescribed by it” and by various colleges and universities.

      . In Spigelmire v. School Dist., 352 Pa. 504, 43 A.2d 229 (1945) the plaintiff was the holder of a permanent state teacher’s certificate but was employed as a clerk. She received a contract which provided that she was “to teach in the said school district,” the contract conforming to the Teacher Tenure Act in Pennsylvania. In holding that the plaintiff was not entitled to tenure, the court said at p. 231:
      “Appellant would have us clothe the verb ‘teach’ with a meaning that it has never had in any dictionary or in any known judicial opinion. The verb ‘teach’ is a very old word of long established and universally known meaning. Changing the meaning of words is not a legislative function. There is nothing in the Teachers’ Tenure Act which indicates that the legislature intended to make the word ‘teach’ and ‘clerk’ synonymous.”

      . Plaintiff did do some part-time substitute teaching for another school district, apparently during the 1973-74 school year.


author: PER CURIAM.

text:
    Peggy Butts MATTHEWS, Plaintiff-Respondent, v. Guy E. TURNER, Defendant-Appellant.
    No. 10119.
    Missouri Court of Appeals, Springfield District.
    March 24, 1977.
    Nicholas R. Fiorella, Springfield, for plaintiff-respondent.
    Arthur S. Haseltine, Springfield, for defendant-appellant.
   PER CURIAM.

On May 7, 1975, a Greene County jury found that a document under date of February 15, 1972, was not the last will and testament of one Ella C. Butts. Appellant filed an after-trial motion which was denied by the trial court. Thereafter, appellant initiated the present appeal. However, the appeal is premature as no judgment has been entered in the case.

We are not unmindful that counsel for appellant was not involved with the litigation at a time when judgment should have been entered and that counsel sought leave to correct the deficiency by supplementation. Nevertheless, this court cannot act beyond the authority established by statute. In Missouri, appeals may only be taken from a final judgment. § 512.020, RSMo 1969, V.A.M.S.; Rule 74.01, V.A.M.R.

The appeal must be, and is, dismissed for lack of a judgment.

All concur.


author: HARBISON, Justice.

text:
    KREE INSTITUTE OF ELECTROLYSIS INC., Appellant-Plaintiff, v. The STATE BOARD OF ELECTROLYSIS EXAMINERS et al., Appellees-Defendants.
    Supreme Court of Tennessee.
    March 28, 1977.
    Tyree B. Harris, IV., Harlan Dodson, Nashville, for appellant-plaintiff.
    Frank J. Scanlon, Asst. Atty. Gen., Brooks McLemore Jr., Atty. Gen., Nashville, of counsel, for appellees-defendants.
   OPINION

HARBISON, Justice.

This declaratory judgment action challenges the constitutionality of the state “Electrologists Practice Act” as enacted in 1974 and amended in 1976. T.C.A. §§ 62-2401 et seq. The Chancellor held the statute and regulations issued pursuant thereto free from any of the constitutional infirmities asserted by appellant, which then perfected its appeal to this Court.

Appellant is engaged in the manufacture of electrical machines and equipment used in the process of electrolysis, involving the removal of unwanted human hair. It also conducts a school for the training of persons to operate its machines and to engage in the practice of electrolysis, furnishing them with certificates of satisfactory completion of its courses of study and training. It also has a number of employees engaged in the practice in this and other states, usually in conjunction with the operations of beauty salons which are not owned and operated by appellant, but a part of whose facilities or quarters are utilized by the personnel of appellant.

The statute in question creates a State Board of Electrolysis Examiners, and provides for the licensure of persons engaged in the practice of electrology, defined as:

“. . . the art and practice relating to the removal of hair from the normal skin of the body by the application of an electric current to the hair papilla by means of a needle or needles so as to cause growth inactivity of the hair papilla and thus permanently remove the hair.” T.C.A. § 62-2402(a).

The process by which the removal of such hair is accomplished is referred to in the statute as “electrolysis”.

The school of instruction conducted by appellant is located outside of Tennessee, and there is no contention that the statute and regulations in question directly govern the teaching or manufacturing operations of appellant. Its primary insistence is that electrology is not a practice or profession which requires such skill or training as to be within the police power of the State, but rather is an ordinary occupation or livelihood falling outside the scope of State li-censure or regulation. Appellant relies primarily upon the case of Livesay v. Tennessee Board of Examiners in Watchmaking, 204 Tenn. 500, 322 S.W.2d 209 (1959).

Appellant’s own proof, however, practically refutes this contention. The chief executive officer of appellant testified:

“Q. As respects the licensing per se, your school is not opposed to that, is it?
“A. No, sir, we are not. As a matter of fact, we are for it.
“Q. You are for it?
“A. Yes.”

Appellant’s evidence showed that the process of electrolysis requires the insertion of a needle into the human skin, and the sending of an electrical charge through the needle so as to destroy the hair papilla, preventing further growth and loosening the hair itself for its easy removal. This process was described in some detail by one of appellant's employees, who testified that she performed it under a strong light, with the aid of magnifying lenses, and that it was very exacting and tiring work. The operator is required to be skilled in the operation of the machine, and to have knowledge of certain human illnesses and allergies. She takes histories from the customers before performing the work upon them and sometimes consults with their physicians. A dermatologist testified for the Board, and stated that he sometimes referred patients to electrologists, and that it was exacting work which he seldom undertook to perform himself.

The record fails to establish appellant’s claim that the regulation of this practice is beyond the police power of the State to enact legislation for the safety and health of its citizens. In the case of Estrin v. Moss, 221 Tenn. 657, 430 S.W.2d 345 (1967), the Court found little analogy between the Livesay case, supra, involving watchmaking, and a statute regulating the business of termite eradication. We find even less analogy to the practice of electrology, and believe the case to be governed by the principles stated in Tennessee Board of Dispensing Opticians v. Eyear Corporation, 218 Tenn. 60, 400 S.W.2d 734 (1966):

“It seems to us that the Act in question represents a valid regulation by the General Assembly of this State of a business or calling affecting the public interest and having a direct relationship to public health and welfare, and, when the Legislature thus elects to pass an Act for this purpose to regulate the practice of dispensing opticians, it is clearly a reasonable and salutary act.” 218 Tenn. at 74— 75, 400 S.W.2d at 741.

It is argued on behalf of appellant that electrology is merely a phase or branch of the practice of cosmetology, and that is is usually practiced in connection with the operation of a hairdressing or beauty salon. It is therefore contended that the regulation of electrologists should be placed under the State Board of Cosmetology. See T.C.A. § 62-401 et seq.

This, of course, is a matter of judgment and is one which addresses itself to the General Assembly, not to this Court. An examination of the definitions of the two fields of endeavor, and of the training which the General Assembly deems necessary for licensure, makes it readily apparent that they involve different skills and types of preparation.

Appellant further contends that even if the practice of electrology is subject to state licensure and regulation, certain provisions of the existing statutes and regulations are arbitrary and unreasonable.

One of appellant’s principal attacks is upon T.C.A. § 62-2403, the terms of which are also carried forward into regulations adopted by the Board, as follows:

“Practitioners shall limit their practice solely to that of electrology with no other business allowed on the premises.”

Appellant offered testimony that most of its employees operate through the facilities of a beauty parlor, but always in separate, private quarters. Indeed all of the witnesses who testified in the case stated that the practice should be carried out in strict privacy, not only for the benefit of the patient, but because of the exacting and tedious nature of the work required of the operator. It is either done in a separate room in a beauty salon; or, according to the record, if operators engage in the practice in their private homes, it is usually carried on in a separate and private part of the residence. None of appellant’s employees are permitted to do anything except electrolysis, and they do not engage in hairstyling or any other beauticians’ work.

This testimony, again, supports the reasonableness of the statutory requirements of exclusivity of occupation and of facilities. This does not necessarily mean that the existing practice described by appellant’s employee, of utilizing private quarters within a beauty parlor, is a violation of the statute. Certainly there is no evidence that it has been so interpreted by the Board, or that the Board has any intention of giving any restrictive construction to the statute. All of the employees of appellant who were operating in Tennessee at the time the Act took effect were “grandfathered”, and no one of them has had her license revoked or any other action taken against her because her operations have continued to be within a beauty salon, using a receptionist employed by the salon for the purpose of making appointments.

On their face, we certainly cannot say that the provisions of T.C.A. § 62-2403 are invalid, and there is no evidence in the record to indicate that they have been given any unreasonable construction or application. If such a case should arise, and a proper evidentiary showing made, the matter could be inquired into further.

Appellant’s final insistence is that the required course of study for licensure is unreasonable and unconstitutionally discriminatory. The statute requires that to be eligible for certification, an applicant must be at least eighteen years of age, of good moral character, and a high school graduate. She must have completed the undergraduate course of study prescribed by the State Board for the Healing Arts, and the Advisory Board of the Tennessee Medical Association. In addition, the applicant must have completed a course in practical training in electrolysis in a school of electrology, which school shall include at least 450 hours of clinical experience and 150 hours of lectures on insertion techniques, modalities and regrowth problems and office management. In the alternative, however, the applicant must have completed a like number of hours in the subject area specified in an apprenticeship program approved by the Board. Finally the applicant must show freedom from any infectious disease and must pay the statutory fees. T.C.A. § 62-2407.

Many of these statutory requirements are also requirements of appellant for graduation from its training school. It requires the graduate to be at least eighteen years of age, of good moral character, a high school graduate and in possession of both good eyesight and good general health. Appellant only requires 120 hours of instruction, including 75 hours of practical training and the remainder in the study of theory. The executive officer of appellant, however, admitted that there is, to his knowledge, at least one school of electrolo-gy in another state which requires some 1100 hours of study. In both his opinion and that of his employee, study in excess of 120 hours would not appreciably increase the efficiency of the operator of one of appellant’s machines. This testimony falls far short of establishing that others may not reasonably be of a different opinion and certainly fails to demonstrate the arbitrariness or unreasonableness of the educational requirements set out in the Tennessee statute.

The State requires a course of study of 1200 hours over a period of not less than seven months in an accredited barber school or college, plus the passage of an examination, in order for an individual even to be licensed as an apprentice barber, and requires an additional apprenticeship period of twelve months, and an additional examination, in order for him to be licensed as a master barber. See T.C.A. § 62-310, 311. Certainly we cannot hold as a matter of law that the requirement of one-half of these hours of training for an eleetrologist is discriminatory or unreasonable. Appellant’s witness testified that the Tennessee requirement would involve an apprenticeship training program of some three months which, again, is less than one-half of that required for an apprentice barber.

Appellant also complains of the college-level courses of study prescribed by the Board, but we are of the opinion that the proof fails to establish that these courses are unrelated or unnecessary to the practice of electrology to such a degree that we could strike them as being arbitrary or invalid, or as unreasonably preventing otherwise qualified persons from seeking entry into this regulated field of endeavor.

We have carefully considered all of the contentions of the appellant and find them to be without merit. The judgment of the Chancellor is in all respects affirmed, at the cost of appellant.

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

      . The statutes requiring licensure for barbers were upheld in State ex rel Melton v. Nolan, 161 Tenn. 293, 30 S.W.2d 601 (1930).