author: HOWARD, Judge. PARK, Judge,

text:
    James R. YOCOM, Commissioner of Labor and Custodian of the Special Fund, Appellant, v. Eugene GANTLEY, Sunset Memorial Gardens, and Kentucky Workmen’s Compensation Board, Appellees. SUNSET MEMORIAL GARDENS and Federal Kemper Insurance Agency, Appellants, v. Eugene GANTLEY, Kentucky Workmen’s Compensation Board, and James R. Yocom, Commissioner of Labor and Custodian of the Special Fund, Appellees.
    Court of Appeals of Kentucky.
    Feb. 17, 1978.
    Discretionary Review Denied June 6, 1978.

      Cyril E. Shadowen, Asst. Counsel, Dept, of Labor, Louisville, Kenneth E. Hollis, Gen. Counsel, Dept, of Labor, Frankfort, for James R. Yocom, Commission of Labor and Custodian of the Special Fund.
    Charles L. Hobson, Robert A. Bowman, Frankfort, for Sunset Memorial Gardens and Federal Kemper Ins. Co.
    Billy Todd Cheshire, Frankfort, for Eugene Gantley.
    Before HOWARD, PARK and WHITE, JJ.
   HOWARD, Judge.

This is an appeal from the Franklin Circuit Court wherein the Opinion and Award of the Kentucky Workmen’s Compensation Board was affirmed. The Board found the claimant, Eugene Gantley, to have a thirty percent disability to the body as a whole, with twenty-five percent of that disability being noncompensable. The remaining five percent disability was apportioned between the Special Fund and the employer, Sunset Memorial Gardens. The percentage calculation pursuant to KRS 342.730(l)(b) entitled Gantley to an award of $2.70 per week for as long as he is disabled. However, pursuant to Apache Coal Company v. Fuller, Ky., 541 S.W.2d 933 (1976), the Board increased the amount of the award to $29.00 per week.

The Special Fund argues that KRS 342.-740(1) as interpreted by Apache, supra, bears no reasonable relation to established principles of workmen’s compensation law and therefore violates Sections 2, 3 and 59 of the Kentucky Constitution and the Due Process and Equal Protection clauses of the Fourteenth Amendment of the Constitution of the United States. The employer, Sunset Memorial Gardens, raises this constitutional argument, and also raises as error that the Board’s finding that Gantley received an injury of appreciable proportions resulting in the impairment of his future earning capacity is clearly erroneous based on the reliable, probative and material evidence contained in the record.

Gantley, at the time of his injury, was working for Sunset Memorial Gardens selling memorial estates. On January 10, 1975, he slipped and fell on a sidewalk while proceeding to a house for the purpose of soliciting a sale. In this fall he fractured his left leg. Gantley had been stricken with polio in that leg at an early age, necessitating numerous surgeries throughout his life. From time to time, he had worn a brace on his left leg and used crutches.

After reviewing the medical testimony contained in the record, especially that of Dr. Armand K. Fischer, we feel that there is substantial evidence in the record to support the Board’s finding that Gantley has suffered a five percent occupational disability to the body as a whole. Armco Steel Corporation v. Mullins, Ky., 501 S.W.2d 261 (1973). The Board correctly followed the procedure outlined in Young v. Fulkerson, Ky., 463 S.W.2d 118 (1971), in apportioning the liability between the Special Fund and the employer.

The interpretation of KRS 342.740(1) by the court in Apache, supra, allowed minimum weekly benefits for permanent partial disability. We are aware that the General Assembly has amended KRS 342.730(l)(b), effective January 1, 1977, in response to the Apache decision.

In Cantrell v. Stambaugh, Ky., 420 S.W.2d 677, 678 (1967), the court states that “[T]he maximum award base is a matter of substance . . . and thus governed by the statutes in effect at the time of the accident.”

And in Collier v. Hope Coal Co., Ky., 269 S.W.2d 278 (1954), the court makes these statements, at page 280, concerning changes in the Workmen’s Compensation law, KRS 342.111:

. In fact, the statute was enacted to correct a defect in the Workmen’s Compensation Act which was brought into sharp focus by our opinion in Harrison v. Tierney Mining Company, 276 Ky. 637, 124 S.W.2d 757, holding that the dependents of an injured employee could not recover undue and unpaid weekly compensation installments after the employee’s death — that the right to such weekly payments did not survive his death. As a consequence, it naturally follows that any increase in the amount allowed by the statute for death was not intended to apply retroactively.

Both in Harrison v. Tierney Mining Company, supra, and in Apache, the court states that it is interpreting the respective statutes and that modification of the statutes should come from the legislature.

We cannot hold Apache unconstitutional as it was the logical interpretation of KRS 342.730(l)(b) as that statute read before amendment. The statute in effect at the time of Gantley’s accident and its interpretation in Apache governs the amount of the award he is to receive.

The judgment of the trial court is affirmed.

WHITE, J., concurs.

PARK, J., concurs in part and dissents in part.

PARK, Judge,

concurring in part and dissenting in part.

I concur in that portion of the opinion of the majority holding that there was substantial evidence in the record to support the board’s finding that Gantley had suffered a 5% occupational disability to the body as a whole as a result of the work related injury. Gantley’s injured leg was still causing him difficulty and pain. He testified that his injured leg tires more quickly than previously and that he can no longer do a lot of walking. This court cannot disturb the board’s finding. However, I believe that there is merit in the argument that the provisions of KRS 342.-740(1) relating to the minimum weekly income benefits are unconstitutional when applied to the facts of this case.

Gantley’s average weekly wage at the time of his injury was $97.89. Gantley has since been able to obtain new employment at $135.00 per week. Consequently, the board’s award is based upon a finding of probable future loss of wages. The board has, in effect, predicted that Gantley will have an average weekly wage loss of $4.89 ($97.89 X 5%). Even though the board has found that Gantley’s earning capacity has been diminished by only $4.89 per week, the board has awarded Gantley benefits of $29.00 per week. This sum represents 20% of the state average weekly wage which constitutes the minimum weekly income benefit provided by KRS 343.740(1). See Apache Coal Co. v. Fuller, Ky., 541 S.W.2d 933 (1976). Another employee with the same average weekly wage and no dependents, but with a 54% disability, would have received the same benefits as awarded Gantley ($97.89 X 55% X 54%). Gantley not only received the same weekly benefits as an employee whose disability was ten times greater, but Gantley also received $24.11 per week more than his projected weekly loss of earning power. I can find no rational basis for awarding Gantley any sum in excess of his average weekly wage multiplied by the percentage of disability determined by the board. The board’s award of $29.00 per week to Gantley includes, in effect, a weekly gift of $24.11 which is completely unrelated to the injury suffered by him. To the extent that Gant-ley’s employer and the Special Fund are compelled to make* such a weekly gift to Gantley, KRS 342.740(1) is arbitrary and in violation of section 2 of the Kentucky Constitution. See Burns v. Shephard, Ky., 264 S.W.2d 685 (1953), and Illinois Central Railroad Co. v. Commonwealth, 305 Ky. 632, 204 S.W.2d 973 (1947).

I would reverse the judgment of the circuit court. The case should be remanded to the board with directions to limit the liability of the employer and the Special Fund to $2.45 per week each ($97.89 X 2½%). In computing the minimum weekly income benefits payable under KRS 342.740(1), the factor provided by KRS 342.730(l)(b) need not first be applied to average weekly earnings.


source: Caselaw Access Project

author: REYNOLDS, Judge.

license: Public Domain

text:
    KINSER SHEET METAL, INC., Appellant, v. Charles N. MORSE and Linda L. Morse, Appellees.
    Court of Appeals of Kentucky.
    Feb. 17, 1978.
    Discretionary Review Denied June 6, 1978.
    Chester I. Bays, Bowling Green, for appellant.

      Michael A. Owsley, English, Lucas, Priest & Owsley, Bowling Green, for appellees.
    Before HOWERTON, REYNOLDS and LESTER, JJ.
   REYNOLDS, Judge.

The appellant, Kinser Sheet Metal Inc., a subcontractor, appeals from an order of Warren Circuit Court which dismissed its action to enforce a mechanics’ and material-men’s lien.

Appellees, Charles and Linda Morse, owners of a lot, had contracted with D & S Construction Company for the erection of a single family dwelling. D & S, by subcontract, engaged appellant to furnish materials and labor which it commenced on September 24,1976 and ended on November 15, 1976. Appellees, during the interim, moved into the unfinished dwelling on November 12, 1976. No contract existed between appellant and appellees. D & S became insolvent, and notice of intention to file a mechanics’ lien was given by appellant to ap-pellees on December 28, 1976, and its lien was filed and recorded on January 5, 1977.

Appellant maintains that K.R.S. 376.-010(3) is controlling rather than K.R.S. 376.-010(4) (enacted 1974); the latter subsection provides:

No person who has n'ot contracted directly with the owner-occupant or his authorized agent shall acquire a lien under this section on an owner-occupied single or double family dwelling or the appurtenances or additions thereto unless he notifies in writing the owner-occupant of the property to be held liable or his authorized agent not more than ten (10) days after the first item of material or labor is furnished, of the delivery of the material or performance of labor and of his intention to hold the property liable and the amount for which he will claim a lien.

At issue, basically, is the interpretation and construction of the phrases, “owner-occupant” and “owner-occupied single or double family dwelling,” which were employed by the legislature in this statute.

Both parties agree that it was the legislative will and intent by the enactment of K.R.S. 376.010(4) to provide protective measures to the owner of a single or double family dwelling from the inequities of liens that surface after the owner has paid his contractor in full. However, appellant maintains that the statute is limited to improvements of an existing dwelling house occupied or inhabited by the owner. The appellees maintain that the statute applies, as in this case, to the erection of a new dwelling.

K.R.S. 446.080 provides the basis for construction of statutes as well as the words and phrases contained therein. We find that the 1974 legislature made the following changes in K.R.S. 376.010 as follows:

Subsection (1) additionally provides for the payment of interest upon the lien.
Subsection (2) — no change.
Subsection (3) provides the creditor with 75 days for the giving of notice on claims less than $1,000 and extends the time for the giving of notice to 120 days on claims in excess of $1,000 after the last item of material or labor is furnished.
Subsection (4) is a new provision included within the statute.

After full deliberation it appears that the mechanics’ liens statutes are not predicated on any concept of credit reliance. Labor or materialmen can enforce a lien against the owner of land even though at the time he performed the service or furnished the material, he did not know who was the owner. While the mechanics’ liens statutes have consistently been construed liberally to protect those who furnish the labor and/or materials, we have no difficulty in discerning the view which the legislature intended to promote and the objects of this statute.

Subsection (4) is applicable only to a single or double family dwelling and this classification is further limited to the class of owner-occupants of owner-occupied dwellings. It appears that it was the legislative intent to use the word “owner-occupied” to mean actual occupancy, and not constructive occupancy. Meaningfully, it denotes premises which are used and occupied as a dwelling house, though not necessarily on an absolutely continuous and uninterrupted basis. Lexicographers are, however, in agreement that the term “occupant” means one who occupies a particular place, and especially a resident. The usage given to the word “occupied” we hold to be the common usage and to mean “to reside in as an owner.” Webster’s Third International Dictionary. See also Nevin v. Louisville Trust Co., 258 Ky. 187, 79 S.W.2d 688 (1935). The statute was intended to afford protection to an owner who resided upon the premises as to additions or improvements effectuated by the labor or the materialmen and, therefore, in this case, does not apply to a new dwelling under construction or before the owner-occupant has undertaken residency therein.

Having found no additional provision in section (4) relating to the erection of a home or house and no inconsistency between section (4) and section (1), we think the reasonable effect of section (1) applies in this case. Baker v. White, 251 Ky. 691, 65 S.W.2d 1022 (1933). In interpreting the statute the court shall not restrict it to the language of the particular section but may consider the statute as a whole, as well as the condition of the laws of the state in force at the time of its passage, and such other prior or contemporaneous facts and circumstances as may throw light on the intention of the legislature.

The judgment is reversed.

All concur.


author: HAYES, Judge.

text:
    Charles Robert SMITH, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    March 17, 1978.
    Rehearing Denied May 26, 1978.

      Nicholas W. Carlin, Louisville, for appellant.
    Robert F. Stephens, Atty. Gen., David N. Whalin, Asst. Atty. Gen., Frankfort, for appellee.
    Before HAYES, VANCE and WHITE, JJ.
   HAYES, Judge.

The appellant-defendant, Charles R. Smith, is appealing a judgment of conviction for first degree rape, KRS 510.040(l)(a). Smith received a ten (10) year sentence. Appellant contends the trial court committed reversible error on seven (7) different points; however, all seven (7) points may be determined by answers to the questions of whether the trial court correctly interpreted the Rape Shield Law (KRS 510.145) and whether that law is constitutional. Our answer is yes to both questions.

The testimony was that after attending classes at a local high school, the victim went to a tavern to meet some friends. The appellant, an acquaintance of the victim, talked with her at the tavern and agreed to drive her home. Appellant had several alcoholic drinks before and after leaving the tavern. Instead of taking the victim home, Smith drove to a deserted gravel road. The victim testified that he forcibly raped her. Smith testified that she consented to the sexual intercourse.

Both the victim and Smith gave written statements to the police. Smith, in his statement, contended he had been to visit his wife at the hospital where she had just given birth to their son. He left and went to the tavern where the victim was and, after a few drinks and a few games of billiards, he drove her home. On the way to the victim’s home, she consented to sexual intercourse.

We then come to that part of Smith’s statement which the court excised before the statement was introduced into evidence and displayed to the jury. The statement is before us in its entirety by way of an avowal. The excised portion of the statement reads:

I asked her what was the matter and she said that I was Dennis best friend and that it was not right. I then stop and set back up in the seat and she jumped up and put her slacks back on and said she did not want to be with me but wanted to be with Dennis. I told her Dennis was through with her and that he did not want to loose his wife over her. I had heard her sav that she was going to shoot Dennis wife and that wav she would not have to share him. ... I drove back to 23rd and Market and saw a fellow that I know and told him about it. This fellow is Jeff. He knows both Peggy and Dennis. He told me that she had done some like this about five or six days ago and that nothing had come of it. (The underlined portions are parts of the statement excised by the trial court.)

The record indicates that Dennis and Jeff, and possibly others, were to testify at the trial as to prior sexual misconduct by the victim. The trial court would not permit this and refused to permit the defendant from bringing this out in his testimony.

The portions of the victim’s statement excised by the trial court were pertaining to her previous relationship with Dennis.

Smith contends the trial court wrongly interpreted the Rape Shield Law (KRS 510.145) and thereby permitted an excision of portions of the parties statements because the prosecution was the party seeking the introduction of the statements. As we read this record, the prosecution, even though it introduced the statements, was the party seeking the excisions. This is the proper procedure. Otherwise, we would be requiring the Commonwealth to introduce evidence that the defendant is not permitted to introduce.

KRS 510.145 states in part:

(2) In any prosecution under KRS 510-040 through KRS 510.140, . . . reputation evidence, and evidence or specific instances of the complaining witness’ pri- or sexual conduct or habits is not admissible by the defendant.

Most of the excised portions of the statements of the parties and proffered testimony by the defense of prior sexual misconduct by the victim with others were either “reputation evidence” or “evidence or specific instances of the complaining witness’ prior sexual conduct or habits” which are plainly prohibited by the statute. Even though the trial court may have been overly restrictive in this case, its rulings based on its interpretation of KRS 510.145 were correct.

The appellee, Commonwealth of Kentucky, devotes much of its brief to an interpretation of KRS 510.145(3)(a) and (b). Ap-pellee contends that the trial court, in accordance with those provisions of the statute, determined that the proffered evidence was inadmissible as being irrelevant and that the probative value of the offered evidence did not outweigh its inflammatory or prejudicial nature. We point out that it is unnecessary, in this case, to go into those provisions of the statute because KRS 510.-145(3)(a) and (b) only apply to prior sexual conduct by the victim with the defendant. The defendant Smith in this case testified he had no prior sexual contact with the victim.

Is KRS 510.145 constitutional? This question apparently has not been answered in this jurisdiction. We believe the statute is constitutional and is a valid exercise by the legislature of this Commonwealth to prevent the victim in a sexually related crime from becoming the defendant at a trial. Prior to the enactment of KRS 510.-145, evidence of the victim’s prior sexual conduct was admissible to support the proposition that if she consented to have relations with one or more persons then she consented to the relations with the defendant. We believe the legislature correctly concluded that juries placed too much emphasis on this testimony as substantive evidence. Under the law prior to the enactment of KRS 510.145, there was never a requirement that the jury be instructed that this evidence was admissible for impeachment purposes only. The legislature corrected this by the enactment of KRS 510.145 and we believe properly so.

The State of California has a Rape Shield Law comparable to ours. California Evidence Code § 782 and § 1103 (1974). In the case of People v. Blackburn, 56 Cal.App.3d 685, 128 Cal.Rptr. 864 (1976) the defendant had been charged with rape. There was evidence adduced at a preliminary hearing through cross-examination of the victim that she had had previous sexual contact with a person other than the defendant. Defendant moved to introduce this evidence at his trial as evidence to attack the victim’s credibility as a witness. The trial court barred it under the California Rape Shield Law. The defendant, on appeal, attacked the constitutionality of the law, as he does in our case, on the basis of a denial of a fair trial, denial of the right to confront the witnesses against him and a denial of his 5th Amendment right against self incrimination. The California court held that the defendant was denied neither his right to a fair trial nor his right to confront the witnesses against him by the application of the applicable California Evidence Code provisions, making inadmissible reputation evidence and evidence of specific instances of the victim’s sexual conduct with others to prove consent. We agree with the California court’s holding.

There are certain policy considerations in determining the provisions for the introduction of evidence. The procedural rule against the introduction of hearsay and opinion evidence, for example, is based in part upon the unreliability of the evidence proffered and the undue weight the jury might place upon such evidence. This evidence is excluded even though it may tend to completely exonerate a defendant in a criminal proceeding. The same policy consideration is present in the instant case as applied to the Rape Shield Law. The evidence of prior sexual conduct has little probative value, at best. It was not admissible prior to the enactment of KRS 510.145 to show the prosecution witness’ bias or reasons for testifying falsely, but was admitted for the sole purpose of negating one of the essential elements of the crime of rape, i. e., nonconsent.

The California court summed it up appropriately in Blackburn when it stated:

The historical rule allowing the evidence may be more a creature of a onetime male fantasy of “the girls men date and the girls men marry” than one of logical inference. 56 Cal.App.3d at 690, 128 Cal.Rptr. at 867.

The appellant’s contention that the trial court erred in denying him the opportunity to prove that his written statement to the police did not contain the statement, “There’s a young lady who is going to report a rape, and I did it.” The Commonwealth had advised the jury that the statement did contain this language. This was untrue. Actually, the record indicates this evidence came from a police officer who testified instead of being in the defendant’s statement. The jury had the written statement of the defendant and the testimony of the police officer. The trial court instructed the jury that the statement spoke for itself. We see this as harmless error, if anything.

The judgment of the trial court is affirmed.

All concur.


author: BARDGETT, Judge. DONNELLY, Judge, SEILER, Judge,

text:
    STATE of Missouri, Respondent, v. Charles ARNOLD, Appellant.
    No. 59894.
    Supreme Court of Missouri, En Banc.
    March 13, 1978.
    Rehearing Denied June 15, 1978.
    John B. Newberry, Springfield, for appellant.
    John D. Ashcroft, Atty. Gen., William F. Arnet, Asst. Atty. Gen., Jefferson City, for respondent.
   BARDGETT, Judge.

Appellant Charles Arnold was tried and convicted in the Circuit Court of Greene County, Missouri, of burglary and stealing. The court of appeals, Springfield district, reversed and remanded the case for a new trial. This court sustained respondent’s application for transfer. Art. V, sec. 10, Mo. Const.

At 2:48 a.m. on the morning of January 13, 1975, officer Harold Wynn of the Springfield City Police Department observed a Pontiac automobile leaving the parking lot of the Glen Isle Shopping Center in Springfield, Missouri. No shops were open on the shopping center at that time. The automobile left the parking lot at a high rate of speed with its lights off. The lights were turned on about one-half block from the shopping center. Officer Wynn radioed headquarters that he was going to pursue the automobile and as he did so another police officer, Ronald Hardt, examined the stores in the shopping center. He found that the La Vogue Dress Shop had been broken into. When officer Wynn was advised of this a short time later he proceeded to stop the Pontiac. The doors of the dress shop had been checked by officer Hardt at 2:03 a.m., 45 minutes prior to Wynn’s initial observation of the Pontiac and found to be secure.

Three persons were in the front seat of the Pontiac when officer Wynn stopped it. Appellant was on the right-hand side of the automobile next to the door. The occupants, including appellant, were placed under arrest. Officer Wynn observed that the entire automobile was dust covered except for the upper portion of the trunk and the portion around the locking mechanism where several handprints were outlined in the dust.

After the occupants had been taken from the scene, officer Wynn made an “inventory search” of the automobile. As he climbed in the back seat, the bottom part rotated forward allowing the back part to slide down. A gap was created between the seat and the trunk large enough to permit officer Wynn to peer into the trunk with his flashlight. Upon doing so he observed a large pile of clothing. The automobile was then taken into police custody.

A warrant was applied for based on the reports of officers Wynn and Hardt. A search of the trunk disclosed 72 items of ladies’ apparel, all of which were positively identified by Leopold Marin, owner of the La Vogue Dress Shop, as items taken from the store. The stolen merchandise consisted of coats, pantsuits and slacks. The trunk also contained a box of “craftsman tools,” a pry bar, and a tire tool. Prior to the search the trunk had remained locked.

Appellant raises several objections to the trial court’s failure to sustain his motion to suppress. Appellant contends that evidence, i. e., the 72 items of clothing, was unlawfully seized for three reasons: (1) there was no probable cause for the arrest of appellant and therefore no lawful search of the automobile incident to the arrest; (2) at the time of the search appellant was no longer at or near the automobile; therefore, a warrantless search to protect evidence or officers from injury was not necessary; and (3) because the initial view of the evidence by officer Wynn was part of an unreasonable search, the subsequent warrant based upon what was seen in the first unreasonable search uncovered “fruit of the poisonous tree” which should have been suppressed.

It is unnecessary to consider these arguments because appellant lacks standing to raise objections to the search of the Pontiac in which he was a passenger. Possession at the time of the alleged wrongful search is not an element of the crimes for which appellant has been charged; therefore, he has no automatic standing to contest the search. Brown v. United States, 411 U.S. 223, 229, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973); Jones v. United States, 362 U.S. 257, 263, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). Appellant has shown neither an ownership nor proprietary interest in the automobile. State v. McCarty, 460 S.W.2d 630, 635 (Mo.1970). The law of Missouri has consistently been that a casual passenger has no standing to challenge a search of an automobile. State v. Thompson, 490 S.W.2d 50 (Mo.1973); State v. Heitman, 473 S.W.2d 722 (Mo.1971); State v. Browner, 514 S.W.2d 355 (Mo.App.1974). Appellant has failed to sustain his burden of proving that he has standing to raise questions as to the legality of the search of the automobile and seizure of its contents. State v. Hornbeck, 492 S.W.2d 802, 808 (Mo.1973).

Appellant’s remaining point is that the trial court erred in not sustaining his motion for a directed verdict of acquittal at the close of the state’s evidence. He argues that the mere fact of his presence in the automobile does not establish his possession of the stolen goods found therein nor his knowledge of their presence in the trunk.

Appellant argues that the evidence fails to show any form of “affirmative participation” on his part. State v. Cobb, 444 S.W.2d 408, 411-412 (Mo.banc 1969), and State v. Irby, 423 S.W.2d 800, 803 (Mo.1968), contain language to the effect that evidence of some form of affirmative participation is required. Both of those cases rely on State v. Butler, 310 S.W.2d 952 (Mo.1958). In Butler the defendant was charged with breaking out of and escaping from the Dunklin county jail. Defendant objected to the sheriff’s testimony that several bars were cut on the door of the jail on the grounds that no evidence was introduced to show defendant personally participated in the bar cutting. Other evidence showed that defendant was present at the time of the cutting and that he used the opening to make his escape. The court ruled the evidence competent and relevant on the issue of whether or not there had been a breaking of the jail. The court stated at 957:

“ . . .In order to sustain a conviction for breaking the county jail and escaping it is not necessary to prove that the defendant personally cut the bars of the jail door. Defendant was charged singly and in joint concert with breaking the county jail and escaping. It is well settled that; party may be charged with the commission of the felony and be held under such charge for being present and participating in concert with the others in the commission of the crime, or for being present and aiding and assisting another in doing it. It is not necessary that he, personally, have done all the things which together make up the elements of the crime. State v. Sheard, Mo.Sup., 276 S.W.2d 196, certiorari denied, 352 U.S. 849, 77 S.Ct. 68, 1 L.Ed.2d 60; State v. Whitaker, Mo.Sup., 275 S.W.2d 316; State v. Chernick, Mo.Sup., 278 S.W.2d 741.”

As the Butler case illustrates, the requirement of “affirmative participation” may be satisfied by inference and the evidence need not directly place the defendant in the act of committing the crime for which he is charged. This principle was recognized in State v. Reed, 453 S.W.2d 946 (Mo.1970), where the court held at 948-949: “ . . . [I]t has also been held that presence, companionship and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred. As stated in State v. Ramsey, Mo., 368 S.W.2d 413, 417, ‘Evidence fairly showing any form of affirmative participation in a crime is sufficient to support a conviction.’ It is not necessary that the defendant personally did all of the things which together make up the elements of the crime. State v. Butler, Mo., 310 S.W.2d 952, 957.” See also State v. Corbin, 186 S.W.2d 469, 471 (Mo.1945); State v. Nichelson, 546 S.W.2d 539, 543 (Mo.App.1977); State v. Burks, 521 S.W.2d 11, 15 (Mo.App.1975); State v. Jackson, 519 S.W.2d 551, 557 (Mo.App.1975); State v. Johnson, 510 S.W.2d 485, 489 (Mo.App.1974).

The state’s case was based on circumstantial evidence. In State v. Franco, 544 S.W.2d 533, 534-535 (Mo.banc 1976), this court considered the appropriate standard of appellate review in such a case:

“ . . . First, the facts in evidence and all favorable inferences reasonably to be drawn therefrom must be considered in the light most favorable to the state and all evidence and inferences to the contrary must be disregarded. State v. McGlathery, 412 S.W.2d 445, 447 (Mo.1967); and State v. Chase, 444 S.W.2d 398 (Mo.banc 1969). Second, when the state’s case rests upon circumstantial evidence, ‘the facts and circumstances must be consistent with each other and with the hypothesis of defendant’s guilt, and they must be inconsistent with his innocence and exclude every reasonable hypothesis of his innocence.’ State v. Ramsey, 368 S.W.2d 413, 416 (Mo.1963). See also: State v. Thomas, 452 S.W.2d 160, 162 (Mo.1970). Third, the prevailing circumstantial evidence rule, supra, is realistically tempered in its application since ‘[i]n a case involving circumstantial evidence the circumstances need not be absolutely conclusive of guilty, and they need not demonstrate impossibility of innocence[;] . the mere existence of other possible hypothesis is not enough to remove the case from the jury.’ State v. Thomas, supra, at 162.”

The evidence here would support the following findings: 1. Between 2:03 a.m. and 2:48 a.m., on January 13, 1975, forcible entry into the La Vogue Dress Shop in the Glen Isle Shopping Center, Springfield, Missouri, was gained through the front door and 72 items of ladies’ apparel were taken therefrom. The fact that “some” quarters were found lying on the floor after the discovery of the burglary would support the inference that the burglars (or burglar) were in haste. 2. At 2:48 a.m., a Pontiac automobile driven by one Riley and occupied by appellant and another person made a hasty and suspicious departure from the vicinity of the dress shop. 3. The trunk of the Pontiac, which was locked, contained the stolen merchandise and some tools which could have been used to effect entry.

“An inference of guilt is permissible from the unexplained possession of property recently stolen in a burglary and the inference exists both as to the offense of burglary and of stealing.” State v. Cobb, supra, at 414.

“The possession of recently stolen property which will support an inference of guilt may be a joint possession of the accused and others and such possession need not be separated from all possession by others.” Cóbb at 412.

“Stolen property found in an automobile in which the defendant is a passenger near the scene of a burglary is admissible against the defendant at his trial for burglary without showing that the defendant had any interest in or right to possession of the automobile.” Cobb at 414.

“The bulk and nature of stolen property has a bearing on the manner in which it may be possessed.” Cobb at 412. The court may also look to the circumstances surrounding a defendant’s alleged participation in the burglary to determine the nature of the possession. See State v. Schleicher, 438 S.W.2d 258, 260-261 (Mo.1969).

The facts of State v. Cobb, supra, are sufficiently analogous to the facts of this case to make it controlling. In Cobb this court upheld the conviction of defendant for burglary and stealing. In response to a burglary alarm, police were dispatched to a drugstore. When they arrived they saw a Pontiac with its lights off slowly leaving the parking lot. As they approached, the Pontiac accelerated and was driven rapidly from the parking lot. The Pontiac fishtailed, skidded into a ditch, and finally stalled in the middle of the highway. Defendant was a passenger in the right front seat. Fourteen bottles of prescription drugs, identified as those taken from the burglarized drugstore, were found in a cardboard box behind the right front seat, which seat was occupied by defendant.

It is argued that Cobb is distinguishable on two grounds. First, the defendant in Cobb gave a rather fanciful testimony that he was asleep during the burglary and the attempted getaway. But the jury obviously chose not to believe this testimony. Furthermore, in determining whether the evidence was sufficient to support the verdict, the court stated: “. . . [W]e must disregard entirely the testimony of Cobb and Greer [another occupant of the automobile] that Cobb was asleep at the time the burglary and stealing occurred.” 444 S.W.2d at 412. In the present case, appellant did not testify. In light of what the court in Cobb said, Cobb’s testimony should be irrelevant.

The second basis of distinction is the fact that the stolen merchandise used to convict appellant was found in the locked trunk of the Pontiac. Is the fact that the stolen goods were locked in the trunk and not in the back seat of critical importance in this case? We think not. Here, the items stolen were 72 articles of ladies’ apparel. Obviously, a burglar of any intelligence would want the stolen goods in the trunk rather than the back seat as in Cobb. The defendant in Cobb, sitting in the front seat, was not exercising any dominion or control over the stolen drugs. The circumstances leading to his arrest, rather than the place where the stolen drugs were found, were of critical importance in Cobb. The recent burglary, the suspicious nature of the automobile’s departure from the vicinity of the crime, and the fact that the stolen goods were found in the automobile, all supported the inference that Cobb participated in the burglary and the conclusion that he possessed the stolen goods jointly with the other occupants. As the court in Cobb stated at 414:

“The evidence in the instant case is much stronger than in the case of State v. Watson, Mo., 350 S.W.2d 763, in that the defendant Cobb was shown to have been at the scene of the crime and had an opportunity to commit it in addition to being a passenger in the car transporting the stolen property.”

The case at bar is similar to Cobb in each of these respects. Here, there is evidence of appellant’s continuous presence in the automobile from the time it left the scene until the police pulled it over. This fact is of paramount importance in the present case. There is no doubt but that defendant was at the scene of the crime immediately after its commission. See State v. Farmer, 490 S.W.2d 72 (Mo.1973), where such continuity was not shown and for' that reason the evidence was held insufficient to make a submissible case.

Appellant argues that the placement of the stolen drugs in Cobb under the bucket seat occupied by the defendant evinced his participation by moving his seat or momentarily leaving the automobile while the drugs were placed there. However, the court in Cobb found only that one of the front seats had to be moved to permit a person to leave or enter the back seat. It is entirely possible that whoever placed the box under the seat entered from the driver’s side of the automobile and Cobb did not move at all. The court in Cobb did not base its decision on such an insignificant involvement as the moving of the defendant’s bucket seat.

The mere presence at the scene of the crime, coupled with an opportunity to have committed it, will not suffice to support a conviction. State v. Allen, 420 S.W.2d 330, 333 (Mo.1967). It is also well settled that presence at the scene and flight therefrom are insufficient. State v. Castaldi, 386 S.W.2d 392, 395 (Mo.1965). Here, however, we have a combination of presence at the scene, an opportunity to commit the crime, flight, and possession of the recently stolen merchandise, all in one continuous chain of events. The combination of these facts distinguish Allen and Castal-di.

Several other cases involving passengers and stolen goods locked in automobile trunks are distinguishable from the case at bar primarily because the evidence adduced was insufficient to place the defendant at the scene of the crime.

In People v. Malone, 1 Ill.App.3d 860, 275 N.E.2d 236 (1971), the theft occurred prior to August 14, 1970, and the arrest occurred on August 27, 1970. The length of time creates a tenuous connection at best of defendant with the stolen merchandise.

In People v. Evans, 24 Ill.2d 11, 179 N.E.2d 657 (1962), the burglary occurred in St. Joseph, Illinois, while the automobile in which defendant was riding was stopped in Pekin, Illinois. There was no other evidence to place defendant at the scene. The court said that the defendant was not in possession of the items locked in the trunk where the evidence showed no more than that defendant was riding in an automobile in which recently stolen property was found. 24 Ill.2d 11, 179 N.E.2d at 660.

State v. Andrade, 83 Ariz. 356, 321 P.2d 1021 (1958), involved the burglary of a residence between 2:00 p.m. and 10:15 p.m. Defendant and others were arrested in an automobile a mile and a half from the scene at 10:15 p.m. The automobile contained food taken from the burglarized residence which was still cold. One of the passengers had a still-bleeding cut and not yet dried blood was found at the scene of the burglary. The defendant was in a bar between 6:00 and 8:00 p.m. when he met the rest of the occupants of the automobile and left with them. The court held that absent “some evidence of the presence of all of them at the scene of the burglary or a conspiracy among them to commit the burglary” the facts failed to show joint possession. 83 Ariz. 356, 321 P.2d at 1022.

Finally, United States v. Mallory, 460 F.2d 243 (10th Cir. 1972), held the evidence insufficient to convict the defendant Watson of bank robbery where he was a passenger in an automobile in which the stolen money was found an hour and a half after the robbery. The evidence showed that the distinctive automobile in which Watson was a passenger was seen in the vicinity of the bank and that a black male with long sideburns was seen leaving the bank, which description Watson fit. The court found these facts to be inconclusive and held that the length of time between the crime and defendant’s arrest created a reasonable doubt as to whether or not he actually participated in the crime.

The authorities cited above from other jurisdictions are factually different from the present case.

The court holds the evidence was sufficient to support the conviction. The judgment is affirmed.

MORGAN, C. J., and HENLEY, FINCH and RENDLEN, JJ., concur.

DONNELLY, J., dissents in separate dissenting opinion.

SEILER, J., dissents in separate dissenting opinion.

DONNELLY, Judge,

dissenting.

In my opinion, the evidence adduced in this case is insufficient to support the judgment of conviction.

I respectfully dissent.

SEILER, Judge,

dissenting.

I respectfully dissent, agreeing with the opinion expressed by Donnelly, J., in his dissent that the evidence in this case is insufficient to support the judgment of conviction. As my reasons therefor, I adopt the following portion of the opinion written by Flanigan, J., for the court of appeals, Springfield district, reversing the conviction and remanding the case.

On the point as to the insufficiency of the evidence to support the conviction Judge Flanigan said, omitting direct quotation marks:

“The presence of the accused at the place of the commission of a criminal offense may be considered along with other incriminating evidence to determine if the total circumstances raise a reasonable inference that the accused was a participant or an aider or abettor in the crime. . . . Evidence fairly showing any form of affirmative participation in a crime is sufficient to support a conviction . . Even in cases where the evidence is wholly circumstantial, the evidence tending to support the verdict must be considered as true, contrary evidence must be disregarded, and every reasonable inference in support of the verdict must be indulged.” State v. Cobb, 444 S.W.2d 408, 412 (Mo. banc 1969).

“Stolen property found in an automobile in which the defendant is a passenger near the scene of a burglary is admissible against the defendant at his trial for burglary without showing that the defendant had any interest in or right to possession of the automobile. ... An inference of guilt is permissible from the unexplained possession of property recently stolen in a burglary and the inference exists both as to the offense of burglary and of stealing.” Cobb, supra at 414.

“The possession of recently stolen property which will support an inference of guilt may be a joint possession of the accused and others and such possession need not be separated from all possession by others.” Cobb, supra at 412. On the same page it is said: “The bulk and nature of stolen property has a bearing on the manner in which it may be possessed.”

The evidence in the case at bar would support the following findings:

1. Between 2:03 and 2:48 a. m. on January 13,1975, forcible entry to the dress shop was gained through the front door and 72 items of ladies’ apparel were taken therefrom. The fact that “some quarters” were found lying on the floor after the discovery of the burglary would support the inference that the burglars (or burglar) were in haste.

2. At 2:49 a. m. a Pontiac automobile driven by one Riley and occupied by the defendant and another person made a hasty and suspicious departure from the vicinity of the dress shop.

3. The trunk of the Pontiac, which was locked, contained the stolen merchandise and some tools which could have been used to effect the entry.

The evidence, and the inferences therefrom, may be adequate to show that the defendant was in the vicinity of the dress shop when the offenses of burglary and larceny were committed, but the issue is, do they “fairly show any form of affirmative participation by the defendant in the crimes”? Cobb, supra at 412.

In State v. Irby, 423 S.W.2d 800, 803 (Mo.1968) it is said: “The most that can be said for the state’s case is that it places defendant at the scene of the crime immediately prior thereto, in the company of one who apparently was directly implicated; that it demonstrates that defendant had an opportunity to participate in the commission of the crime and reveals him in very suspicious circumstances. This, however, is not enough to sustain the state’s burden of establishing defendant’s guilt, either as a principal or as an aider and abetter.” If the words “prior thereto” be changed to “thereafter” that statement describes the facts at bar.

It is true that a person who aids and abets the commission of a criminal offense is guilty as a principal without a showing of conspiracy. State v. Reed, 453 S.W. 946, 948[1] (Mo.1970). It is also true that the presence of one at the commission of a felony by another is evidence to be considered in determining whether or not he was guilty of aiding and abetting and that presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred. Reed, supra at 948[2-6].

However, the mere presence of the accused at the scene of the crime, coupled with an opportunity on his part to have committed it, will not suffice to support a conviction. State v. Allen, 420 S.W.2d 330, 333[3] (Mo.1967). Also insufficient is the combination of presence at the scene and flight therefrom. State v. Castaldi, 386 S.W.2d 392, 395 (Mo.1965); State v. Minor, 531 S.W.2d 101, 102[2] (Mo.App.1975).

Here the evidence showed the presence of the defendant in the vicinity of the burglary during, or at least shortly after, its commission. Defendant was in the same vehicle with two other persons, one of whom was driving the vehicle in a suspicious manner. The vehicle contained the stolen merchandise. But whether defendant remained in the vehicle during the commission of the offense, aloof from their perpetration, or whether he actively participated therein remains open to speculation.

There is of course no direct evidence that the defendant participated in the burglary or the larceny. There is no showing whether the crimes were committed by only one person or by more than one person acting in concert. There was no showing that the burglary and larceny could not have been accomplished by one person acting alone.

Who forced open the door? Who took the stolen goods? Who placed them in the trunk? Who locked the truck? Who possessed the key to the trunk? Who was the owner of the Pontiac? These questions remain unanswered.

In support of its assertion that the evidence was sufficient to support the conviction, the state places its principal reliance upon Cobb, supra. In Cobb the court upheld the conviction of the defendant for burglary and stealing. A drug store was burglarized at night and several (“a number of”) bottles containing prescription drugs were stolen. The police observed a Pontiac automobile leaving the vicinity of the drug store. The Pontiac was moving slowly with its lights off. As the police ear approached, the Pontiac “accelerated and was driven rapidly from the parking lot. As it turned off on Limit Avenue the rear end ‘fishtailed’ and the car skidded into a ditch.” The defendant was a passenger in the Pontiac, occupying the right front seat. The missing bottles were found on the floor behind the right front seat. The evidence showed that it was necessary to push the front seat forward in order to enter or leave the back seat.

Defendant Cobb testified that he was asleep in the back seat. The court pointed out that the jury did not believe “the defendant’s story that he was asleep during the din that must have attended the breaking of the large window of the drug store with a 10-pound metal milk carrier approximately 20 feet from the automobile, the disturbance of depositing the stolen drugs in the rear portion of the [Pontiac], and the unusual movements of rapid acceleration, fishtailing, and skidding of the car.”

In Cobb the court said at 414, “[w]e hold under all of the evidence and circumstances in this case that the defendant jointly with others had actual and exclusive possession of the merchandise stolen from the drug store.” (emphasis added). .

Although this case bears some factual resemblance to Cobb, supra, there are some dissimilarities which render Cobb non-controlling. In Cobb the stolen merchandise was found by the officers on the back floor behind the right front seat occupied by the defendant. The court pointed out that it was necessary to move the front seat, a “bucket seat,” in order to gain access to that area. In view of the state of the stolen articles in Cobb, it is reasonable to infer that the defendant must have moved the seat to permit their placement in the vehicle or he must have been outside the vehicle when they were placed therein, either inference being inconsistent with Cobb’s testimony.

Here, however, the stolen merchandise was in the locked trunk of the Pontiac driven by Riley. There is no showing that the defendant owned the Pontiac or that he had any type of interest in it. There is no showing that the defendant was ever in possession of the key to the trunk.

The dominion which Cobb had over the stolen merchandise and the extent to which he possessed it were greater than the dominion, if any, which this defendant had over the contents of the trunk.

In the following cases evidence that the defendant was present as a passenger in an automobile, the locked trunk of which contained recently stolen merchandise, was insufficient to implicate the passenger in the larceny thereof: United States v. Mallory, 460 F.2d 243 (C.A.10 1972); People v. Malone, 1 Ill.App.3d 860, 275 N.E.2d 236, 237[1] (1971); People v. Evans, 24 Ill.2d 11, 179 N.E.2d 657, 659[2, 3] (1962); State v. Andrae, 83 Ariz. 356, 321 P.2d 1021 (1958); Anno. 51 A.L.R.3d (Burglary — “Exclusive” Possession) § 15, p. 727.

In drug possession cases a passenger in an automobile has been held not to be in possession of the contents of a locked trunk.

Unlike the situation in Cobb, it may not properly be said, under the evidence here, that the defendant “jointly with others had actual and exclusive possession” of the merchandise.

In Cobb the defendant, at the trial, told an unbelievable story with regard to his conduct at the scene. Here the defendant did not testify.

In Cobb there was evidence that the defendant and the other occupants of the vehicle had spent considerable time together on the day before the burglary and had done extensive traveling together, circumstances suggestive of collective enterprise. There is no evidence here concerning the prior association of the defendant with the other two occupants of the Pontiac.

So far as the instant record reflects it was at least possible that the defendant remained seated in the front seat throughout the commission of the offenses by one or both of his companions, doing nothing that constituted “consciously sharing” in the crime or “seeking by his action to make them succeed” or “associating himself with the venture in some fashion” or otherwise “affirmatively participating” therein, as required by Irby, supra. See also State v. Miller, 536 S.W.2d 524, 527[3-5] (Mo.App.1976).

This court is not unmindful of the fact that the instant crimes were committed in the dead of night, in an area where no stores were open. It is speculative whether or not defendant was engaged in any legitimate enterprise at that time and in that place. It may well be that he was offering aid to the burglar or burglars. Indeed it may be that he was the burglar and the only one. But “a verdict based on suspicion, conjecture, or surmise, however strong, is not sufficient to permit a criminal conviction.” State v. Morse, 515 S.W.2d 608, 610[5] (Mo.App.1974).

It was not incumbent upon the defendant to justify his presence or explain his conduct. On the state rested the burden to prove his guilt beyond a reasonable doubt and the evidence here fails to meet that standard.

      . In Commonwealth v. Franks, 235 Pa.Super. 327, 340 A.2d 456 (1975), a burglary conviction was upheld by a divided court where defendant was a passenger in a speeding automobile found three blocks from a burglary within 30 minutes of its commission. The stolen merchandise was found in the trunk which was open about a foot and a half. There was also evidence that either defendant or one of his two companions dropped a watch which had been stolen in the burglary.
      See also Bury v. State, 2 Md.App. 674, 236 A.2d 751 (1968) and Hale v. State, 5 Md.App. 205, 245 A.2d 908 (1968), in each of which defendant was a passenger in a vehicle seen at the scene, the locked trunk of which contained merchandise taken in a recent burglary. In each of these cases, however, there was evidence of active participation at the scene by the same number of people later found in the vehicle.

        Other cases upholding a burglary conviction where the defendant was a passenger in an automobile found near the scene of a recent burglary, where the stolen articles were found inside the vehicle as distinguished from being in its locked trunk, include State v. Johnson, 447 S.W.2d 285 (Mo.1969) and State v. Miller, 485 S.W.2d 435 (Mo.1972).
      See also State v. Ramsey, 368 S.W.2d 413 (Mo.1963) and United States v. McCall, 148 U.S.App.D.C. 444, 460 F.2d 952 (1972).

      . In Corrao v. State, 154 Ind.App. 525, 290 N.E.2d 484 (1972), passengers in an automobile were held not to be in possession of marijuana found in the trunk although the driver was held to be in possession of it as was another passenger who owned the automobile. To similar effect see Montoya v. United States, 402 F.2d 847 (5 Cir., 1968), Bettis v. United States, 408 F.2d 563 (1969), and People v. Mosley, 131 Ill.App.2d 722, 265 N.E. 889, 890[3] (1971); Anno. 57 A.L.R.3d 1319 (Illicit Drugs — Possession by Car Occupant).

      . In State v. Miller, 536 S.W.2d 524 (Mo.App.1976) evidence was held insufficient to support a conviction for burglary and larceny where it was shown that the defendant was on the premises the day before the burglary occurred and he was arrested five days later 100-120 miles from the scene of the burglary riding as a passenger in a vehicle in which some of the stolen merchandise was found. The court pointed out that the defendant “made no incriminating statement connecting him with the crimes; no contradictory statements to the officers; . .
      In State v. Enochs, 339 Mo. 953, 98 S.W.2d 685, 687 (1936) the court, referring to a statement made by the defendant to police officers, said: “This statement was false and therefore incriminating for if the facts were consistent with appellant’s innocence he need not have lied about them.” (emphasis in original).


author: HENLEY, Judge.

text:
    BROWN-FORMAN DISTILLERS CORPORATION et al., Respondents, v. James F. McHENRY et al., Appellants, Missouri Wine and Spirits Association, Inc., Intervenor-Appellant.
    No. 60052.
    Supreme Court of Missouri, En Banc.
    April 24, 1978.
    Rehearing Denied June 15, 1978.
    John D. Ashcroft, Atty. Gen., Terry C. Allen, Asst. Atty. Gen., Jefferson City, James F. McHenry, Pros. Atty., Jefferson City, for appellants.
    Cullen Coil, Jefferson City, for respondents.
    John H. Hendren, Alex Bartlett, Hendren & Andrae, Jefferson City, for intervenor-appellant.
   HENLEY, Judge.

This is an appeal from a judgment and decree declaring unconstitutional parts of House Bill No. 810 enacted by the 78th General Assembly, First Regular Session, 1975, and enjoining permanently the enforcement thereof.

By their petition, Brown-Forman Distillers Corporation, et al. (plaintiffs) sought (1) a judgment declaring House Bill 810 unconstitutional and void because it violated Mo.Const. Art. Ill, §§ 21 and 23, in that (a) contrary to § 21, the bill was “so amended in its passage * * * as to change its original purposes”; and (b) contrary to § 23, the bill did not contain “one subject * * * clearly expressed in its title * * * ”; and (2) a decree enjoining James F. McHenry, as prosecuting attorney of Cole county, et al. (defendants) from enforcing provisions of § 2 of House Bill 810, the violation of which is declared by § 6 to be a felony punishable by a fine or imprisonment or both. Missouri Wine and Spirits Association, Inc. (intervenor), with leave, intervened as a party defendant, filed answer, and has filed a separate brief on appeal. As indicated, the trial court granted the relief sought by plaintiffs. More specifically, the parts of House Bill 810 declared unconstitutional are a part of § 1(6) and all of § 4, both of which were added to the bill by an amendment in the Senate. These parts, declared to be severa-ble from the remainder of the law passed by the bill, were severed and the remainder of the law left intact.

Plaintiffs are foreign corporations licensed as distillers or suppliers authorized to solicit orders for intoxicating liquor from licensed spirituous liquor and wine wholesalers in Missouri, and each does solicit orders from wholesalers in Missouri and ships such liquor from outside to wholesalers in this state. They have contracts or agreements with liquor wholesalers that are terminable at will. These agreements provide for their termination by either party without cause or notice, or without cause but with notice of termination, or without right of renewal and early termination for cause. None of the liquor wholesalers are made parties-defendant, but intervenor, a trade association of such wholesalers, represents the interests of those who are members of the association. Under the law (§§ 407.400 to 407.420, supra), as passed by the general assembly in the form of House Bill 810, franchise agreements in the liquor industry may not be terminated at will.

Chapter 407, RSMo, relating to certain merchandising practices, was enacted in 1967. Laws of Mo., 1967, p. 607; §§407.010 to 407.130, RSMo 1969. In 1974, the 77th General Assembly, Second Regular Session, adopted House Bill No. 1132, containing five sections relating to certain merchandising practices. Laws of Mo., 1974, p. 896. The law enacted by this bill defined “pyramid sales scheme” and “franchise.” It also forbade pyramid sales schemes and prohibited the cancellation or termination of franchise agreements without ninety days notice except for specified cause. Section 5 of the bill (§ 407.420, RSMo Supp. 1975) made it a felony to violate § 2 of the bill (§ 407.405, RSMo Supp. 1975) pertaining to pyramid sales schemes and cancellation of franchise agreements.

House Bill No. 810, the constitutionality of which is attacked in this case, had as its title when introduced the following:

“An Act to repeal Section 1 of House Bill 1132, Second Regular Session, 77th General Assembly, relating to certain merchandising practices, with penalty provisions, and to enact in lieu thereof one new section to be known as Section 1.”

When finally adopted as law, the title of House Bill 810 had been amended by adding the portion italicized so that it reads as follows: “An Act to repeal Section 1 of House Bill 1132, Second Regular Session, 77th General Assembly, relating to certain merchandising practices, with penalty provisions, and to enact in lieu thereof one new section to be known as Section 1, to enact a new Section 4 and renumbering Sections 4 and 5.”

The new § 1 changed the definition of “franchise” so as to explicitly include wholesalers and suppliers or distillers of spirituous liquors. New § 4 prohibited the cancellation of liquor franchises at will. These changes were made by Senate amendment No. 1. The full text of House Bill 810, as adopted by the legislature, with the part added by Senate amendment No. 1 italicized, is set out in the attached appendix.

The parts of House Bill 810 regulating franchise agreements in the liquor industry were similar to provisions of House Bill No. 569 (also introduced in the 78th General Assembly, First Regular Session) which sought to amend chapter 311, relating to alcoholic beverages, by adding two new sections pertaining to franchise agreements. This bill was not adopted.

Defendants and intervenor contend that the trial court erred in enjoining enforcement of §§ 1(6) and 4 of House Bill 810 and in declaring them unconstitutional, because, they say, those sections do not violate Mo. Const. Art. Ill, §§ 21 or 23 in that (1) the bill was not so amended in its passage through the legislature as to change its original purpose, and (2) its title contains one subject clearly expressed therein.

In response, plaintiffs contend and argue that the court correctly held (1) the title of the bill, as passed, did not contain one subject clearly expressed, that the title contained “matters which are incongruous, unconnected and deceptive,” and did not refer to penalty provisions contained in the bill; and (2) that an amendment of the bill made during its passage changed its original purpose; that when chapter 407 was enacted in 1967 it dealt with “consumer protection” and the liquor industry was not covered by its terms; that, as finally passed, the bill amended the comprehensive code of liquor control (chapter 311) by amendment of the consumer protection statutes although the bill specifically designed to accomplish this result (House Bill 569) was not adopted.

Defendants also contend that contracts or agreements between the distiller or supplier of intoxicating liquor and the wholesaler are not “franchises” within the meaning of the law adopted by passage of House Bill 810. Intervenor, unlike its codefendants but agreeable to the position of plaintiffs, contends that the agreements are such franchises. The trial court concluded that the agreements these plaintiffs have with various wholesalers are franchises within the meaning of these statutes. We concur in that holding. See: Carlo C. Gelardi Corp. v. Miller Brewing Co., 421 F.Supp. 233, 236 (D.N.J.1976); Globe Liquor Co. v. Four Roses Distillers Co., 281 A.2d 19, 20 (Del.1971).

Section 21, like § 23 of Article III, imposes restrictions and limitations upon the legislative process of enacting a law. In considering the “change of purpose” clause of this section the court said in Allied Mutual Insurance Company v. Bell, 353 Mo. 891, 185 S.W.2d 4[1, 3] (Mo.1945) at 1. c. 6: “This purpose means the general purpose of the bill, not the mere details through which and by which that purpose is manifested and effectuated * * * ; and, that “we must make every reasonable intendment to sustain the constitutionality of a statute.”

In considering the reasons for the limitations imposed by § 21 upon the legislative process, the court said in State v. Ludwig, 322 S.W.2d 841[4] (Mo. banc 1959) at 1. c. 847:

“This constitutional limitation, as with the limitation to one subject, is designed to prevent ‘ “the enactment of amendatory statutes in terms so blind that legislators themselves were sometimes deceived in regard to their effects, and the public, from difficulty in making the necessary examination and comparison, failed to become apprised of the changes made in the laws.” ’ 1 Cooley, Constitutional Limitations, p. 314. ‘Purpose’ is the key word in the provision and ‘means the general purpose of the bill, not the mere details through which and by which that purpose is manifested and effectuated.’ State ex rel. McCaffery v. Mason, 155 Mo. 486, 502-503, 55 S.W. 636, 640. Again, the restriction is against the introduction of matter ‘not germane to the object of legislation or unrelated to its original subject,’ alterations which bring about an extension or limitation of the scope of a bill are not prohibited, even new matter is not excluded, if germane.”

As indicated previously, the title to the bill by which chapter 407 was originally enacted in 1967 stated that it related to certain merchandising practices. Laws of Mo., 1967, p. 607. Subsequent legislation, House Bill 1132, enacted in 1974, related to the same subject: “merchandising practices.” It defined for the first time: “pyramid sales scheme” and “franchises,” and made it a felony to violate § 2 thereof which, in connection with the sale of goods, etc., prohibited the sale of the right to participate in a pyramid sales scheme, and prohibited the cancellation of a franchise agreement without notice. Laws of Mo., 1974, p. 896. House Bill 810, bearing essentially the same title, repealed and reenacted with changes House Bill 1132 and both, as finally passed, related to what we believe are, as suggested by intervenor, two types of merchandising practices: “pyramid sales schemes and franchise security.” The amendment of House Bill 1132 as proposed by House Bill 810 (before Senate amendment) related to and had for its general purpose the security of business franchises: the prohibition of cancellation or termination of such franchise agreements without cause and notice. The amendment proposed in the Senate and adopted by both houses related to and had the same purpose. We note that while we have the view that the law adopted by the enactment of House Bill 1132 applied, before the passage of House Bill 810, to merchandising practices within the liquor industry, the passage of House Bill 810, as amended, made it clear this industry had the same protection in this area of merchandising practices as other businesses.

Senate amendment No. 1 was germane to the subject and object of House Bill 810. The bill was not so amended as to change its original purpose.

Plaintiff’s contention that the title of House Bill 810, as passed, violates the “one subject” limitation of § 23, is, as stated, that the purported “title contains matters which are incongruous, unconnected and deceptive” and that the “title did not refer to the penalty provisions contained in the bill.”

The court considered the purpose of the “one subject” provision in Edwards v. Businessmen’s Assurance Co., 350 Mo. 666, 168 S.W.2d 82[17-19] (Mo.1942) and said at 1. c. 92-93:

“The purpose of the constitutional provision, supra, has been stated as follows: ‘First, to prevent hodge podge or “log rolling” legislation; second, to prevent surprise or fraud upon the Legislature by means of provisions in bills of which the titles gave no intimation and which might therefore be overlooked and carelessly and unintentionally adopted; and, third, to fairly apprise the people, through such publication of legislative proceedings as is usually made, of the subjects of legislation that are being considered in order that they have opportunity of being heard thereon, by petition or otherwise, if they shall so desire.’ * * *.

“In the case of State v. Hurley, 258 Mo. 275, 278, 167 S.W. 965, 966, the court said: ‘The purpose of the constitutional provision (section 28, art. 4, Const.Mo.) is that the title shall generally indicate what the act contains, and by the terms “generally indicate” we mean that it shall refer in a comprehensive manner to the subject-matter of the enactment; but it need not necessarily refer to subordinate matters connected therewith or reasonably within the purview of the statute.’

• “The provision requires that matters which are incongruous, disconnected and without natural relation to each other must not be joined in one bill, and the title must be a fair index of the matters in the bill. State ex rel. Niedermeyer et al. v. Hackmann, 292 Mo. 27, 31, 237 S.W. 742. It does not prevent the inclusion in one bill, under one general title, of subjects naturally and reasonably related to each other. * * * ‘The law does not require each separate legislative thought to be embodied in a different bill, when they have a natural connection with each other.’ Thomas v. Buchanan County, 330 Mo. 627, 636, 51 S.W.2d 95, 98. ‘The evident object of the provision of the organic law relative to the title of an act was to have the title, like a guideboard, indicate the general contents of the bill, and contain but one general subject, which might be expressed in a few or a greater number of words. If those words only constitute one general subject; if they do not mislead as to what the bill contains; if they are not designed as a cover to vicious and incongruous legislation, — then the title can stand on its own merits, as an honest title, and does not impinge on constitutional prohibitions.’ * * * The mere generality of the title will not prevent the act from being valid, where the title does not tend to cover up or obscure legislation which is in itself incongruous and has no necessary or proper connection, and in case of an amendatory act a requisite of congruity is that such act shall pertain to and admit of being made a consistent part of the law to be amended. State v. Mullinix, 301 Mo. 385, 390, 257 S.W. 121.

“The constitutional provision simply requires that the title shall give information of the general subject of the act. While it may be so general in its terms as to omit matters germane to the principal features of the statute, if it sufficiently indicates the substantial purpose of the law, it will not be violative of the Constitution.” Graves v. Purcell, 337 Mo. 574, 85 S.W.2d 543, 547-48[4] (Mo. banc 1935); State v. Ludwig, supra, at 846[1, 2]; State ex rel. Toedebusch Transfer, Inc. v. Public Service Commission, 520 S.W.2d 38, 43-44[1, 2] (Mo. banc 1975).

We have the view, and hold, that the amendment of these two sections of House Bill 810 did not violate the constitutional requirement that a bill contain no more than one subject and that it be clearly expressed in the title. First of all, the title did, contrary to plaintiffs argument, refer to penalty provisions. The bill, when introduced and as amended, made no change in and had no effect upon § 6 (now § 407.420) fixing a penalty for violation of provisions of the law enacted by House Bill 1132. The title of the bill, as introduced and as amended, referred to the penalty provisions which had been adopted previously by the enactment of House Bill 1132 and the bill did not propose to change or enact penalty provisions different from those in what is now § 407.420.

The title was very broad and general: “certain merchandising practices.” The amendment of the title was consistent with the amendment of §§ 1(6) and 4 and consistent with the subject and purpose of the bill when introduced. We find no matters in the title which may be said to be deceptive or misleading. The discussion of the “purpose” of the bill demonstrates that its amendment is compatible and consistent with its title and that the title refers in a comprehensive manner to the subject of the bill. The fact that the amendment specifically referred to and regulated merchandising practices within the liquor industry and properly could as well have been made a part of the Liquor Control Law (chapter 311) did not change the purpose of the bill or cause the title to fail to indicate generally what the bill contained.

The judgment and decree are reversed.

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

RENDLEN, J., not sitting.

APPENDIX

Section 1. As used in this act:

(1) The term “sale or distribution” includes the acts of leasing, renting or consigning;

(2) The term “goods” includes any personal property, real property, or any combination thereof;

(3) The term “other property” includes a franchise, license distributorship, or other similar right, privilege, or interest;

(4) The term “person” includes an individual corporation, trust, estate, partnership, unincorporated association, or any other legal or commercial entity; and

(5) The term “pyramid sales scheme” includes any plan or operation for the sale or distribution of goods, services or other property wherein a person for a consideration acquires the opportunity to receive a pecuniary benefit, which is not primarily contingent on the volume or quantity of goods, services, or other property sold or distributed or to be sold or distributed to persons for purposes of resale to consumers, and is based upon the inducement of additional persons, by himself of others, regardless of number, to participate in the same plan or operation;

(6) “Franchise” means a written or oral arrangement for a definite or indefinite period, in which a person grants to another person a license to use a trade name, trademark, service mark, or related characteristic, and in which there is a community of interest in the marketing of goods or services at wholesale, retail, by lease, agreement, or otherwise, including but not limited to a commercial relationship of definite duration or continuing indefinite duration, between a “wholesaler”, such wholesaler being a person as defined in this section, licensed under the provisions of Chapter 311 to sell at wholesale, spirituous liquor and wine containing alcohol in excess of 5 percent by weight to retailers, duly licensed in this state, and a “supplier”, being a person engaged in the business as a manufacturer, distiller, rectifier or out-of-state solicitor whose brands of spirituous liquor and wine are distributed through duly licensed wholesalers in this state, and wherein a wholesaler is granted the right to offer, sell, and distribute within this state or any designated area thereof such of the supplier’s brands of spirituous liquors and wines, or all of them, as may be specified, except that, the term “franchise” shall not apply to persons engaged in sales from warehouses or like places of storage, other than wholesalers as above-described, leased departments of retail stores, places of original manufacture, nor shall the term franchise apply to a commercial relationship that does not contemplate the establishment or maintenance of a place of business within the State of Missouri. As used herein “place of business” means a fixed, geographical location at which goods, products or services are displayed or demonstrated for sale.

Section 2. 1. No person shall, directly or through the use of agents or intermediaries, in connection with the sale or distribution of goods, service, or other property, sell, offer or attempt to sell a participation or the right to participate in a pyramid sales scheme. No person who has granted a franchise to another person shall cancel or otherwise terminate any such franchise agreement without notifying such person of the cancellation, termination or failure to renew in writing at least ninety days in advance of the cancellation, termination or failure to renew, except that when criminal misconduct, fraud, abandonment, bankruptcy or insolvency of the franchisee, or the giving of a no account or insufficient funds check is the basis or grounds for cancellation or termination, the ninety days notice shall not be required.

Section 3. 1. Any contract made in violation of section 2 of this act is void and any person who, directly or through the use of agents or intermediaries, induces or causes another person to participate in a pyramid sales scheme will be liable to that person in civil damages in an amount equal to the sum of twice the amount of consideration paid, and in the case of any successful action to enforce such liability, the costs of the action together with a reasonable attorney’s fee, as determined by the court. An action under this section may be brought in the circuit court having venue within five years from the date on which the consideration was paid.

2. A franchisee suffering damage as a result of the failure to give notice as required of the cancellation or termination of a franchise, may institute legal proceedings under the provisions of this act against the franchiser who canceled or terminated his franchise in the circuit court for the circuit in which the franchisor or his agent resides or can be located. When the franchisee prevails in any such action in the circuit court, he may be awarded a recovery of damages sustained to include loss of goodwill, costs of the suit, and any equitable relief that the court deems proper.

Section 4. 1. If more than one franchise for the same brand or brands of spirituous liquor and wines, or all of them, is granted to different wholesalers in this state, it is a violation of this act for any supplier to discriminate between the wholesalers with respect to any of the terms, provisions, and conditions of these franchises.

2. Notwithstanding the terms, provisions and conditions of any franchise, no supplier shall unilaterally terminate or refuse to continue or change substantially the condition of any franchise with the wholesaler unless the supplier has first established good cause for such termination, noncontinuance or change.

3. Any wholesaler may bring an action in a court of competent jurisdiction against a supplier for violation of any of the provisions of this section and may recover damages sustained by him together with the costs of the action and reasonable attorney’s fees.

4. In any action brought by a wholesaler against a supplier for termination, noncon-tinuance or substantial change in violation of the provisions of this section, it is a complete defense for the supplier to prove that the termination, noncontinuance or change was done in good faith and for good cause.

5. As used in this section, “good faith” is the duty of each party to any franchise and all officers, employees or agents thereof to act in a fair and equitable manner towards each other, and “good cause” means either of the following:

(1) Failure by the wholesaler to comply substantially with the provisions of an agreement or understanding with the supplier, which provisions are both essential and reasonable; or

(2) Use of bad faith or failure to observe reasonable commercial standards of fair dealing in the trade.

Section 5. In addition to other penalties and remedies provided in this act, whenever it appears that any person is engaged or is about to engage in any act or practice which constitutes a pyramid sales scheme, the attorney general may bring an action in the circuit court having venue to enjoin such act or practice, and upon a proper showing, a temporary restraining order or a preliminary or permanent injunction shall be granted without bond.

Section 6. Any person willfully violating any of the provisions of section 2 of this act is guilty of a felony and, upon conviction, shall be punished by a fine of not more than five thousand dollars or by imprisonment by the department of corrections for a term not to exceed five years, or both such fine and imprisonment.

      . Laws of Mo., 1975, p. 381; §§ 407.400 to 407.420, RSMo Supp. 1975.

      . Heublein, Inc.; National Distillers and Chemical Corporation; Somerset Importers, Ltd.; Joseph E. Seagram & Sons, Inc.; and Hiram Walker Incorporated.

      . Section 21 provides, in part: “No law shall be passed except by bill, and no bill shall be so amended in its passage through either house as to change its original purpose.”

      . Section 23 provides, in part: “No bill shall contain more than one subject which shall be clearly expressed in its title * *

      . John C. Danforth, Attorney General of Missouri and Robert G. Stewart, Supervisor of Liquor Control.

      . Section 407.405, RSMo Supp. 1975.

      . Section 407.420, RSMo Supp. 1975.

      . Subsection 1 of § 407.400, RSMo Supp. 1975.

      . Section 407.413, RSMo Supp. 1975.

      . Senate amendment No. 1, House Bill 810.