author: PER CURIAM: FINCH, Judge

text:
    STATE of Missouri, Respondent, v Charles David KAISER, Appellant.
    No. 59100.
    Supreme Court of Missouri, En Banc.
    Feb. 9, 1976.
    James F. Crews (Kibbe, Crews & Gaw), Tipton, for appellant.
    John C. Danforth, Atty. Gen. (Robert L. Presson), Jefferson City, for respondent.
   PER CURIAM:

Upon application of plaintiff-respondent, this cause was transferred to this court from the Court of Appeals, Kansas City District, after the filing of an opinion therein. The same has been re-argued and submitted in this court, and we approve and adopt as our own the opinion heretofore written by Higgins, S. J., without the use of quotation marks, as follows:

Charles David Kaiser was convicted by a jury of a third offense of driving a motor vehicle while intoxicated, a felony. His punishment was assessed at 90 days’ confinement in the county jail, and sentence and judgment were rendered accordingly. Section 564.440, RSMo 1969.

The information charged: that Charles David Kaiser was, on September 11, 1968, convicted in the Magistrate Court of Cooper County, Missouri, of driving while intoxicated, a misdemeanor, ordered to pay a fine of $100, and did pay such fine; and was, on August 22, 1969, convicted in the Magistrate Court of Boone County, Missouri, of driving while intoxicated, a misdemeanor, sentenced to 15 days’ confinement in the county jail; and thereafter on December 31, 1971, in Moniteau County, did wilfully, unlawfully and feloniously drive a motor vehicle while in an intoxicated condition.

Although questioning the admissibility of a Breathalyzer test, appellant does not otherwise question the sufficiency of evidence to show that he drove a motor vehicle while intoxicated; and a jury reasonably could find that on December 31, 1971, at about 2:30 a.m., defendant was observed driving his automobile in California, Moniteau County, Missouri; that the automobile was weaving; that defendant signaled for a turn which he did not make, and drove through two stop signs without stopping; that defendant’s face was flushed, his eyes were bloodshot, his clothing was somewhat disarranged, he was sleepy, and the odor of alcohol was on his breath; that the reading on the Breathalyzer test showed defendant to be intoxicated at the time it was administered shortly after his arrest; that arresting officers were of the opinion defendant was intoxicated.

Appellant contends the court erred in requiring defendant, over his objection and claim of immunity from self-incrimination, to testify against himself and to supply evidence to convict himself with respect to the two former convictions necessary to make the instant charge a felony.

Under Section 564.440, supra, one who operates a motor vehicle while in an intoxicated condition is deemed guilty of a misdemeanor on conviction for the first two violations, and a felony on conviction for the third and subsequent violations. “Evidence of prior convictions shall be heard and determined by the trial court, out of the hearing of the jury prior to the submission of the case to the jury, and the court shall enter its findings thereon.”

The trial court, pursuant to the statute, conducted a hearing in chambers prior to impaneling the jury and the following transpired:

“The information here alleges that this is the third offense * * * Mr. Crews, does the defendant admit those two convictions? MR. CREWS [for defendant]: No, Your Honor. MR. HAWK [prosecuting attorney]: Your Honor, at this time I would ask that the defendant be sworn. THE COURT: All, right.
“CHARLES DAVID KAISER, being duly sworn, testified as follows:
“DIRECT EXAMINATION BY MR. HAWK:
“Q Would you state your full name for the record, please. A Charles David Kaiser. Q Mr. Kaiser, is it true that on September 11 of 1968 that you were convicted of driving while intoxicated in the Magistrate Court of Cooper County, Missouri?
“MR. CREWS: I will enter my objection to that question upon the basis it is requiring him to testify against himself in this case. There is a method of proof by which the Prosecutor can prove up the two prior convictions and this questioning is improper.
“THE COURT: The objection is overruled. He will be required to answer.
“A Yes, sir.
“Q (By Mr. Hawk) You were convicted upon September 11, 1968 in the Magistrate Court of Cooper County, Missouri, of driving while intoxicated? A Yes, sir.
“Q And in compliance with your conviction you were assessed a fine of $100.00, a week end in the county jail and the costs of $11.00, and the jail sentence was suspended, is that correct? A Yes, sir.
“Q Also, Mr. Kaiser, is it true that upon the 22nd day of August, 1969, in the Magistrate Court of Boone County, Missouri, that you were convicted of driving while intoxicated, as a second offense?
“MR. CREWS: I will enter my objection to that question, too, Your Honor, same ground. THE COURT: Objection overruled.
“Q (By Mr. Hawk) You may answer. A Yes, sir. Q The answer was yes? A Yes, sir.
“Q Is it also true that upon your conviction of that offense that the Court did pronounce a sentence upon you that you were sentenced to 15 days in the Boone County jail and the costs, which was $11.00 and your license was revoked for one year thereafter? A Yes, sir.”

In addition, the State offered and the court received two transcripts of proceedings purporting to show the foregoing previous convictions. One such transcript showed that Charles David Kaiser was, on September 11,1968, convicted in the Magistrate Court of Cooper County, Missouri, of driving a motor vehicle while intoxicated, ordered to pay a fine of $100, and did pay such fine. The second such transcript showed that Charles David Kaiser was, on August 22, 1969, convicted in the Magistrate Court of Boone County, Missouri, of driving a motor vehicle while his operator’s license was revoked, and sentenced to three days’ confinement in the county jail.

It is obvious from the foregoing that, aside from the admissions forced from defendant over his objection, the State failed to show two prior misdemeanor convictions of defendant for driving while intoxicated in order to make and try the current charge as a felony.

The question is whether the procedure employed by the court violated the defendant’s constitutional immunity from self-in-erimination.

In this case the proof of defendant’s prior misdemeanor convictions for driving while intoxicated was an integral part of the trial affecting his substantive rights. The hearing for that purpose was necessary to determine whether defendant was properly and correctly charged with a first or second offense misdemeanor or with a felony and how to instruct the jury on punishment limits if found guilty. State v. Myers, 470 S.W.2d 803, 805[4] (Mo.App.1971).

Article I, Section 19, Constitution of Missouri, provides: “That no person shall be compelled to testify against himself in a criminal cause * * The courts in

Missouri have consistently held thereunder that a defendant cannot be compelled to incriminate himself with respect to any of his substantive rights during a criminal trial, e. g., State ex rel. Attorney General v. Simmons Hardware Co., 109 Mo. 118, 18 S.W. 1125, 1127 (1892), “ ‘ ⅝ * * a witness cannot be compelled to give a link to a chain of evidence by which his conviction of a criminal offense can be insured * * *.’ ” See also State v. Topel, 322 S.W.2d 160 (Mo.App.1959); State ex rel. Howard v. Allison, 431 S.W.2d 233 (Mo.App.1968). The respect accorded the constitutional immunity from self-incrimination is well stated in State v. Faulkner, 175 Mo. 546, 75 S.W. 116, 135 (Mo.1903): “In Missouri it forms one of the sections of our Bill of Rights and organic law. ‘No person can be compelled to testify against himself in a criminal cause.’ In every state of the Union a similar provision is found in its Constitution. It is also firmly embodied in the Constitution of the United States. The courts have jealously enforced it in all cases in which it was properly invoked. * * * Boyd v. United States, 116 U.S. 616, loc. cit. 631, 6 S.Ct. 524, 29 L.Ed. 746, voiced the sentiment of all American courts * * *: ‘Any compulsory discovery by extorting the party’s oath or compelling the production of his private books and papers to convict him of crime or to forfeit his property is contrary to the principles of free government. It is abhorrent to the instincts of an Englishman. It is abhorrent to the instincts of an American. It may suit the purposes of despotic power, but it cannot abide the pure atmosphere of political liberty and personal freedom.’ In our own jurisprudence, from the first volume of our Reports down to the last, the same principle has been fearlessly announced and adhered to.”

Only by proof of two prior misdemeanor convictions for driving a motor vehicle while intoxicated could this defendant be tried, convicted and punished as a felon. Such proof was lacking other than that required from the accused himself in violation of his constitutional immunity from self-incrimination.

Respondent argues that the transcript exhibits were sufficient in themselves to prove the prior misdemeanor convictions, and thus the error in requiring testimony to the same effect from defendant was harmless error. This may be true with respect to the Cooper County conviction because the transcript did establish that conviction, and error in requiring the same evidence from defendant was thus rendered harmless. State v. McCollum, 377 S.W.2d 379 (Mo.1964). The same is not true, however, with respect to the alleged conviction for driving while intoxicated in Boone County because there was no proof of such other than the admission forced from defendant; and the trial for a third offense as a felony still fails.

Accordingly, the judgment is reversed and the cause is remanded.

SEILER, C. J., and MORGAN, BARD-GETT, HENLEY and DONNELLY, JJ., concur.

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

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

FINCH, Judge

(dissenting).

I respectfully dissent.

At the outset, I want to make it crystal clear that my disagreement with the principal opinion is not with its conclusion that the trial court erred in requiring defendant to testify against himself in the hearing conducted by the judge outside the hearing of the jury for the purpose of determining whether defendant had two prior misdemeanor convictions for driving while intoxicated. I fully agree that this was error and that defendant’s testimony cannot be considered in determining whether the State proved two prior convictions. Likewise, I agree that the documentary evidence offered by the State in that same hearing before the judge established only one, not two prior driving while intoxicated convictions of defendant. My sole and only disagreement relates to the remedy afforded, namely, an automatic new trial of the whole case.

The State has briefed and argued the proposition that we should order a limited remand for the purpose of having the trial court conduct a new hearing with defendant present for the purpose of determining whether defendant does have two prior convictions for driving while intoxicated. A new trial would be held only if the State should fail to prove the existence of two prior convictions for driving while intoxicated. This suggestion is not discussed or considered in the principal opinion. In my judgment it should be utilized because there is reason to believe that in such a hearing the State may be able to prove the existence of two prior convictions, thereby obviating the need for a complete new trial.

In addition to charging defendant with driving while intoxicated in Moniteau County on December 31, 1971, the information also alleged that defendant had been convicted in the magistrate court of Cooper County on September 11, 1968, of driving while intoxicated for which he was fined $100, and that he had been convicted in the magistrate court of Boone County on August 22, 1969, of driving while intoxicated, being sentenced thereon to 15 days confinement in the county jail. Thus, defendant was charged with violating § 564.440(3). At the hearing before the court at the prior trial, the State, in accordance with the last paragraph of § 564.440, undertook to prove two prior convictions. It offered documentary proof of the conviction in Cooper County, but a second document offered in evidence was a conviction on August 22, 1969, of driving a motor vehicle while his operator’s license was revoked, for which he was sentenced to three days in jail. This obviously was not the conviction for driving while intoxicated which the information charged was entered in the magistrate court of Boone County on August 22, 1969. It is at least possible, and most likely probable, that on August 22,1969, defendant was convicted of two offenses in the magistrate court of Boone County, one for driving a motor vehicle while his operator’s license was revoked, and one for driving while intoxicated, and that a certified transcript of the wrong conviction was furnished to the

prosecuting attorney. If that be the case, then defendant did have two prior misdemeanor convictions for driving while intoxicated, and it was proper to try him under § 564.440(3), with the court instructing the jury on the range of punishment prescribed by that section.

The principal opinion simply assumes that a new trial is necessary by reason of the fact that the court improperly admitted involuntary testimony of defendant and that, excluding that testimony, the State did not establish that there were two prior misdemeanor convictions. In my judgment, it is not necessary or proper to automatically grant a new trial. We have an established procedure which we consistently use in a comparable situation and it should be utilized here.

Sec. 556.280, commonly referred to as the habitual criminal statute, provides that when a person charged with a felony is also charged with and shown to have been convicted previously of an offense punishable by imprisonment in the penitentiary, the trial judge, rather than the jury, shall fix his punishment if he is convicted by the jury of the offense now charged. Under that statute, the trial judge conducts a hearing outside the hearing of the jury in which he determines whether the State establishes the requisite prior conviction and makes a finding thereon. If a prior conviction is shown, the judge submits to the jury only the issue of guilt or innocence of the offense charged and then fixes punishment himself if the jury finds defendant guilty. If the prior conviction is not established, both guilt and extent of punishment are submitted to and determined by the jury.

On several occasions, this court has determined on appeal that the State’s proof of a prior conviction which would serve as the foundation for proceeding under § 556.280 was insufficient. The court, in those instances, could have followed the path adopted in the principal opinion and simply ordered a new trial. However, the court did not do that. It recognized that on remand and retrial, the following would occur: (1) the court would first receive evidence outside the hearing of the jury to determine whether defendant had been convicted previously of an offense which would result in § 556.280 being applicable; (2) if the court found that he had been so convicted, it again would submit to the jury the issue of guilt only; and (3) if defendant was convicted, the court again would fix the punishment. In other words, the case would be tried in exactly the same manner as before. In State v. Hill, 371 S.W.2d 278 (Mo.1968), the court recognized the lack of any necessity for ordering such a rerun. In that case the court said this at 283:

“ * * * Since it appears from the record in evidence most likely that defendant previously was convicted of a felony in a circuit court of this state so that the State promptly can produce the record thereof, and there being no error in the trial of the issue of defendant’s guilt herein, we think it not necessary in this case to require an entire new trial, as was done in State v. Young, Mo.Sup., 366 S.W.2d 386, where claimed previous convictions were in another state. * * * ”

The court then remanded the case to the trial court,

“ * * * with directions to the court to cause the defendant to be brought before it to hold a hearing on the issue of former conviction of defendant and if proved to pronounce sentence and judgment against defendant taking all proper procedural steps required therefor by law and the rules of this court but in the alternative if the issue of former conviction be found in favor of defendant to grant him a new trial on all issues.” State v. Hill, 371 S.W.2d at 283.

This same procedure has been utilized repeatedly. Examples include State v. Holmes, 434 S.W.2d 555 (Mo.1968); State v. Dixon, 434 S.W.2d 564 (Mo.1968); and State v. Garrett, 416 S.W.2d 116 (Mo.1967). The court recognized in each of these cases that a complete new trial was not necessary to determine the threshold question as to prior convictions and that if the limited hearing which it directed should produce proof of the requisite prior conviction, a retrial of the whole case was both unnecessary and wasteful. The procedure utilized adequately protected the rights of the defendant.

As in Hill, Holmes, Dixon and Garrett, the issue raised by defendant herein does not go to the issue of whether defendant is guilty of the substantive offense with which he was charged, namely, driving while intoxicated in Moniteau County on December 31, 1971.. Rather, it goes only to whether defendant had two prior convictions as alleged in the information. The jury only passed upon the issue of whether defendant did or did not drive while intoxicated in Moniteau County on December 11, 1971j and, if he did,'what the punishment should be. They heard no evidence concerning the two alleged prior convictions and were not told about them. Such prior convictions entered into only the question of whether the judge would submit to the jury the range of punishment prescribed by § 564.440(3) or whether he would submit the range of punishment prescribed by § 564.440(2). If, on remand, the State establishes the two prior convictions for driving while intoxicated, the court again would instruct the jury on the range of punishment in exactly the same manner as was done in the first trial. That being true, a retrial should be required only if on remand the State is unable to prove the requisite two prior convictions for driving while intoxicated. A complete new trial is no more necessary to determine prior convictions in this case than it was in Hill, Holmes, Dixon and Garrett.

The exact parallel between these hearings by the court outside the hearing of the jury to determine the existence or non-existence of alleged prior convictions of the defendant in prosecutions under § 556.280 and § 564.440 is demonstrated by the following table:

Is the entire hearing outside the hearing of the jury? Yes

Is the jury informed of the evidence heard in that hearing and what finding the judge makes? No No

Does the outcome of the hearing alter the evidence the jury may hear in the trial of the offense charged? No No

Does the finding by the judge in said hearing affect the conduct of the trial other than with respect to instructions with respect to punishment? No No

Does error of the court in admitting or excluding evidence in the hearing re prior convictions result in error in the trial re determination of guilt or innocence of the offense charged? No No

Will the basis of a retrial, including admissibility of evidence re guilt or innocence, be any different than in the first trial if the court finds the existence of the required prior conviction or convictions? No No

I would follow the procedure utilized in the habitual criminal statute cases and would reverse and remand with directions to the trial court to conduct a hearing on the issue of the existence or non-existence of the two prior convictions of driving while intoxicated alleged in the information. Defendant and his counsel should have notice thereof and are entitled to be present and participate. In that hearing the judge could not consider the testimony which defendant was forced to give against himself in the previous hearing on this issue. If the court determines that the State does not prove the two prior convictions, the court should then proceed with a new trial, with the instructions specifying the range in punishment prescribed by § 564.440(2). However, if both prior convictions are established, no new trial is necessary and the trial court should resentence defendant on the basis of the verdict in the prior trial.

Our trial courts are attempting to cope with an ever increasing caseload. In his address to the General Assembly on January 8, 1976, the Chief Justice noted a substantial increase in cases filed during the fiscal year ending June 30, 1975, as compared with the preceding year. He also noted creation of several new judgeships to help handle the increased volume. It appears likely that this trend will continue and that we will be asking for more personnel from time to time. Under such circumstances, I can conceive of no reason why we should require trial courts to retry cases such as this one when we have a time-tested procedure which is less time consuming and which we have utilized repeatedly in comparable situations. Such procedure has the approval of the United States Supreme Court, and it adequately protects the rights of accused. I find it difficult to justify asking for more personnel if we decline to utilize such established and approved procedures to avoid unnecessary and repetitive proceedings, with the resultant waste of both time and money.

      . The complete text of § 564.440 is as follows:
      “No person shall operate a motor vehicle while in an intoxicated condition. Any person who violates the provisions of this section shall be deemed guilty of a misdemeanor on conviction for the first two violations thereof, and a felony on conviction for the third and subsequent violations thereof, and, on conviction thereof, be punished as follows:
      “(1) For the first offense, by a fine of not less than one hundred dollars or by imprisonment in the county jail for a term not exceeding six months, or by both such fine and imprisonment;
      “(2) For the second offense, by confinement in the county jail for a term of not less than fifteen days and not exceeding one year;
      “(3) For the third and subsequent offenses, by confinement in the county jail for a term of not less than ninety days and not more than one year or by imprisonment by the department of corrections for a term of not less than two years and not exceeding five years.
      “Evidence of prior convictions shall be heard and determined by the trial court, out of the hearing of the jury prior to the submission of the case to the jury, and the court shall enter its findings thereon. As amended Laws 1963, p. 686, § 1; Laws 1967, p. 410, § 1.”
      All statutory references are to RSMo 1969 unless indicated otherwise.

      . Sec. 556.280, insofar as here pertinent, provides as follow’s:
      “If any person convicted of any offense punishable by imprisonment in the penitentiary, or of any attempt to commit an offense which, if perpetrated, would be punishable by imprisonment in the penitentiary, shall be sentenced and subsequently placed on probation, paroled, fined or imprisoned therefor, and is charged with having thereafter committed a felony, he shall be tried and if convicted punished as follows:
      “(1) If the subsequent offense be such that, upon a first conviction, the offender could be punished by imprisonment in the penitentiary, then the person shall receive such punishment provided by law for the subsequent offense as the trial judge determines after the person has been convicted.
      “(2) Evidence of the prior conviction, sentence and subsequent imprisonment or fine, parole, or probation shall be heard and determined by the trial judge, out of the hearing of the jury prior to the submission of the case to the jury, and the court shall enter its findings thereon. If the finding is against the prior conviction, sentence and subsequent imprisonment or fine, parole or probation, then the jury shall determine guilt and punishment as in other cases.”

      . This same procedure for avoiding unnecessary retrials also has been utilized repeatedly by the federal courts and by this court when questions have arisen as to whether the trial court had sufficiently determined the voluntariness of a confession admitted into evidence. The trial court has been directed to conduct a hearing on the issue of voluntariness of the confession and a new trial is given only if the confession is determined to be involuntary and, hence, improperly admitted. Sims v. Georgia, 389 U.S. 404, 88 S.Ct. 523, 19 L.Ed.2d 634 (1967); Sims v. Georgia, 385 U.S. 538, 87 S.Ct. 639, 17 L.Ed.2d 593 (1967); Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1963); State v. Ussery, 452 S.W.2d 146 (Mo. 1970); State v. Taggert, 443 S.W.2d 168 (Mo. 1969); State v. Edwards, 435 S.W.2d 1 (Mo. 1968); State v. Augur, 434 S.W.2d 1 (Mo. 1968); State v. Devoe, 430 S.W.2d 164 (Mo.1968); State v. Glenn, 429 S.W.2d 225 (Mo. banc 1968). See also United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); United States v. Shotwell Mfg. Co., 355 U.S. 233, 78 S.Ct. 245, 2 L.Ed.2d 234 (1957).


source: Caselaw Access Project

author: BARDGETT, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Donald Albert HOOPES, Appellant.
    No. 58649.
    Supreme Court of Missouri, En Bane.
    March 8, 1976.

      Gary R. Black, Sr., Flat River, for appellant.
    Neil MacFarlane, Jefferson City, for respondent.
   BARDGETT, Judge.

Defendant was convicted by a jury on a two-count information containing necessary allegations to bring it within the second offender act, section 556.280, RSMo 1969, with robbery in the first degree by means of a dangerous and deadly weapon, section 560.120, and in the second count with murder in the first degree, section 559.010. He was sentenced by the court to life imprisonment on the murder conviction and twenty-five years, consecutive, on the robbery conviction. The motion for new trial was overruled and defendant appeals.

This case presents an unusual factual situation not previously encountered in earlier cases bearing upon an accused’s constitutional right to trial by jury and privilege against self-incrimination as affected by a written commitment to plead guilty or a confession given by the accused to his own attorney and filed in court where the plea of guilty was aborted and the commitment or confession was thereafter used as evidence against the accused in the trial of the case. Although original jurisdiction of this appeal in this court is somewhat tenuous, this court will retain and decide the case for the reasons stated in Foremost-McKesson, Inc. v. Davis, 488 S.W.2d 193,196 (Mo. banc 1972). Cf. State v. Thomas, 529 S.W.2d 379 (Mo.1975).

The homicide allegedly occurred during the course of the robbery. On July 6, 1973, appellant was formally arraigned and, with counsel present, pled not guilty to both counts. The cause was sent for trial on October 22, 1973, but was continued at defendant’s request to the November term of court. Mr. Mcllrath was retained to represent defendant sometime before October 22, 1973, and the previously appointed counsel was permitted to withdraw.

On January 16, 1974, an “Amended Second Offender Information” was filed which does not materially differ from the first information noted supra. The trial was set for January 28, 1974. On January 28, 1974, the case was continued to February 4, 1974, because defendant’s attorney was engaged in trial elsewhere. On February 11, 1974, the trial began and after the jury was selected the prosecutor requested a conference with defense counsel and the court to “take up the matter of Hoopes’s confession to robbery, which is part of the record.” Defense counsel objected to the use of the document. This document was marked state’s exhibit A, entitled “Affidavit and Plea of Guilty”. The aecompany-

ing cover letter from defendant’s attorney was marked state’s exhibit A-l. Both exhibits were admitted into evidence and read to the jury over defendant’s objection. The document had been forwarded to the trial

court by defense counsel on January 28, 1974, under the cover letter dated January 27,1974, which requested that it be filed in the case. Extensive discussion ensued in the conference. The prosecutor stated that every word spoken by defense counsel was true.

Respondent adopts defendant’s statement of facts except that respondent asserts that the affidavit and plea of guilty was not induced by any plea-bargain agreement made by the prosecutor and that the prosecutor made no agreement to dismiss the murder charge if defendant would plead guilty to robbery. Respondent further asserts that at a pretrial conference a finding was made by the trial court that the confession was voluntary and was not induced by a plea-bargaining agreement made by the prosecutor. Respondent refers the court to the “attached affidavit” as the record support for its assertions. Appended to the transcript of the record is an affidavit of the court reporter in which it is stated that during a conference on the first day of trial the “prosecuting attorney made a statement to the effect: T told you before all deals were off.’ ” This affidavit was not agreed to by the defendant; it does not purport to be a correction of the record as such; it does not reflect where in the record any such statement allegedly occurred; it does not state that such a statement was made on the record and inadvertently not made a part of transcript but just as well could have been a remark made off the record, and it is on its face a conclusion by the court reporter rather than a transcription of that which was allegedly actually stated. The affidavit does not relate itself sequentially to any particular statement by anyone else. The only place in the record of the pretrial conference wherein it is noted that something was said and not recorded by the court reporter is at the conclusion of the discussion concerning the affidavit where the following appears: “THE COURT: Off the record. Now, wait a minute, wait a minute. (Whereupon, a discussion was had off the record.)” By a subsequent affidavit of the same court reporter filed here April 15, 1975, the reporter attests that the “in effect” statement referred to supra was made when the court was not on the record and that had such a statement been made while the court was “on the record”, the court reporter would have recorded and transcribed it.

Although the first affidavit of the court reporter which is attached to the transcript shows it was “approved” by the circuit judge,, nevertheless, it does not purport to be a correction of the record but rather the inclusion in the record of purported statements made off the record. The trial court and the attorneys knew at the time of the purported discussion that it was “off the record”. That means they did not consider what was said to be part of the conference or trial of this case. If the attorneys or the court had desired to place “on the record” statements, discussion, or proceedings which took place “off the record”, it was their obligation to do so at the time the statement or event occurred. Cf. State v. Ford, 487 S.W.2d 1, 6 (Mo.1972), cert, denied 411 U.S. 983, 93 S.Ct. 2277, 36 L.Ed.2d 959 (1973).

The court will not consider the affidavit of the court reporter as part of the record on appeal in this case. See State v. Ford, supra.

Three additional affidavits were filed here September 9, 1975, by the state together with a “Motion Requesting Court to Consider Affidavits”. These also seek to put into the record on appeal additional evidence, explanations of rulings allegedly made, and various conclusions. None of these affidavits are agreed to by defendant and none of them purport to correct the transcript of the record on appeal. They constitute argument, put forth in the form of affidavits, to support the position of the state that the trial court did not err in admitting the “Affidavit and Plea of Guilty” and the cover letter from defendant’s attorney into evidence in this case.

The motion to consider these affidavits is overruled. State v. Ford, supra; Hendershot v. Minich, 297 S.W.2d 403, 410 (Mo.1956).

The court will therefore consider the state’s adoption of defendant’s statement of facts as agreement that the facts as stated are correct but that the state denies they warrant a conclusion that the affidavit and plea of guilty was obtained pursuant to an agreement between the prosecutor and defense counsel.

We have set forth in a footnote supra the relevant portions of the record as to the pretrial conference and consider the statement by the prosecutor made during that conference that everything the defense counsel stated was true to be conclusive on the facts in this case as to those matters which were within the sole knowledge of the prosecutor and defense counsel. The court considers this to be particularly appropriate in this case. This for the reason that, although the prosecutor was present during all stages of these proceedings, no evidence was offered by him and no assertions were made by him during the pretrial conference, during the trial, or during the evidentiary hearing on the motion for new trial, which in any respect contradicted, diluted, or rendered suspect any of the assertions of defense counsel made during that pretrial conference.

The following is the testimony of defendant’s attorney during the hearing on the motion for new trial as set forth in defendant’s brief:

“MR. McILRATH . . .
“On January the — On the Saturday before January 28th I went to the jail to see the Defendant Donald Hoopes; his mother and father were there. I’d talked to Mr. Roberts about what he would do on a plea. At one time he said if he got ready that he wouldn’t take a plea. Later he told me that he would. And I went to see if this man would give a plea. I explained to him that the guns were found at his sister’s; that the case was dangerous. He said he didn’t do it and he wouldn’t plead.
“I was called — I went over to see Mr. Roberts, because I had to take a change of venue — I went to his house — I had to take a change of venue on the matter, and I went to his house before that, though, to talk about this because I couldn’t try it. We discussed the thing. I — he gave me some testimony and some tapes that he had. And I told him this the man wouldn’t plead.
“So, I was called Sunday. And I told him that if he would enter this plea of guilty to robbery that the murder case would be dismissed; Mr. Roberts had promised me that.
“So then Sunday I was called and he said he would sign it. And I called Mr. Roberts and Mr. Roberts told me that he would dismiss the murder charge; that he’d recommend ten years.
“And I set out in the confession that any promises that were made to him you (i. e., the trial judge) did not have to follow; that you and you alone would do the sentencing. But, it was definitely understood that the murder charge would be dismissed. And, for that reason, and that reason alone, this fella (i. e., the defendant) signed the confession.
“And then after that was over Mr. Roberts decided that he would try him even after that he said that he wouldn’t use this confession because the fact that it was for the robbery alone, and then he did.”

The prosecutor declined cross-examination and offered no evidence or testimony on the matter.

Defendant testified at trial and denied complicity in the robbery and the murder and, on cross-examination, admitted he had signed a statement (the affidavit and plea of guilty) to plead guilty to the robbery. On the motion for new trial, defendant testified that his attorney told him that if defendant would plead guilty to the robbery charge the prosecutor would recommend a ten-year sentence to the court and would dismiss the murder charge and that was the basis upon which he signed the affidavit and plea of guilty.

The trial court placed great emphasis on the fact that the last statement on the affidavit was in the defendant’s own handwriting, that statement being, “I understand this may be used in a Court of law”, and on the fact that the affidavit was obtained by and acknowledged before defendant’s own attorney. This appears to have been the principal basis upon which the trial court considered the affidavit to have been “voluntary”.

Additionally, the following colloquy appears after the court noted that the defendant wrote on the affidavit, “I understand this may be used in á Court of law”:

“MR. McILRATH: Well, now, if the Court please, that was used for the simple reason that on two occasions he’d come in and was gonna plead guilty and didn’t.
THE COURT: That’s right.
MR. McILRATH: And for that reason that was put in there. But that still, he was, understood — and it wasn’t to force the prosecuting attorney because the prosecuting attorney did promise that.
THE COURT: Well—
MR. McILRATH: And that was the only reason he signed it. And, well—
THE COURT: Now, I, I don’t thing that constitutes reversible error at all.
MR. McILRATH: All right.
THE COURT: And the Motion for New Trial will be overruled.”

Whatever was said between the prosecutor and defense counsel prior to trial and with reference to state’s exhibit A and a possible plea of guilty was within the sole knowledge of those two persons. The prosecutor admitted on the record that everything defense counsel said to the court was true. The prosecuting attorney is the only official that has the power to voluntarily dismiss a felony charge in this state and he does not need the consent of the court to do so. He also controls whether he will or will not make some recommendation to the court as to the sentence. At least he can do so, in his own discretion, unless the court advises him that he is not to make a recommendation.

The substance of the prosecutor’s admission on the record .is that, regardless of whether agreements reference a possible plea of guilty in November or December 1973 were rescinded, the “Affidavit and Plea of Guilty” document was obtained from and signed by the defendant pursuant to and at a time when there was an agreement existing with respect to a plea of guilty. The reason Mcllrath reduced defendant’s plea to writing prior to appearing in court was because defendant had previously agreed to plead under an arrangement and then backed out at the last minute and did not actually plead guilty to the robbery, and neither Mcllrath nor the prosecutor wanted that to happen again. In short, it was an effort to keep the defendant tied to the agreement.

Of course, a proposed plea of guilty does not become, in law, a plea of guilty until it is actually made in open court by a defendant before a judge and accepted by the judge under the prevailing criteria of voluntariness and knowledge of the consequences, etc., for it is only then that the judge can sentence a defendant. But every plea of guilty that is attempted upon the assurance by a prosecutor that he will or will not do something, of necessity, requires some discussion between the prosecutor and defense attorney as to the conditions of the plea and obviously this must take place before the plea is actually entered. It is axiomatic that, if a prosecutor agrees to dismiss a charge upon condition that the defendant agrees to plead guilty to another charge, the promise to dismiss is offered as an inducement to obtain the guilty plea.

The prosecutor agreed on the record that such arrangements did exist at that time and that the affidavit and plea was obtained pursuant to those arrangements and further that he, the prosecutor, thereafter refused to go through with the bargain.

In State v. Williamson, 339 Mo. 1038, 99 S.W.2d 76 (1936), this court reversed and remanded a first-degree-murder conviction because of error in admitting a confession into evidence which was obtained by the sheriff on the sheriff’s assurances to the accused that he would take certain steps so as to avoid putting the accused on trial for murder. The court held that, if promises made by a person in authority to an accused “are reasonably sufficient to induce and do causally induce an expectation or hope of worldly benefit as against the pending charge, it is enough to bar the confession [citing numerous cases].” 99 S.W.2d at 79.

In State v. Abel, 320 Mo. 445, 8 S.W.2d 55 (1928), another first-degree-murder conviction was reversed and remanded for new trial for error in admitting defendant’s offer to plead guilty into evidence on trial of the case. In Abel an investigator for the prosecuting attorney testified the defendant told the investigator to speak with the prosecutor about the case and that defendant said, “Go talk to him [prosecutor], and I will spill my guts for five years.” The investigator responded, “No use talking; you could never plead guilty in a case like this for five years in the penitentiary.” The court spoke of defendant’s statement as an offer to plead guilty on condition that his punishment would be a five-year sentence. In ruling the case, the court said at 55-56:

“In State v. Meyers, [99 Mo. 107] 12 S.W. 516 [1889], the defendant, when arraigned, pleaded guilty, but the court refused to accept the plea, and it was not entered of record. At the trial, over the defendant’s objection, the state was permitted to prove his plea of guilty when arraigned. This was held error. The court said (page 120 [12 S.W. 519]):
“ ‘But this fact surely did not authorize the reception of the plea of guilty in evidence, after the court had refused to receive that plea, and had placed the defendant upon his trial. No one would contend that, if the plea of guilty had been entered of record, such plea could have been received in evidence against the'defendant, and yet the same principle is involved whether the plea actually go upon record or not; in either case, it must, if received in evidence, be conclusive of the defendant’s guilt. Like the previous question in parliamentary bodies, evidence of such a plea, having been made before a tribunal competent to try the party making it, cuts off debate and determines all issues. The course, therefore, pursued by the trial court, in this regard, was plainly inconsistent; the plea of the defendant should either have been received, and sentence passed accordingly, or that plea should never have been heard of again.
“ ‘By refusing to receive the plea and granting the defendant a trial, this, of necessity, meant a trial with the issues of fact to be determined by the jury, and not to be determined by the previous plea of the defendant, which admitted all that the state desired to prove. In short, the trial court could not refuse to receive the defendant’s plea of guilty at one time, and then use it against him at another. The cases cited by the state, and many others, have been examined, but none have been found to sanction the introduction of such evidence.’ ”

As shown by Williamson and Abel, it makes no difference whether the utterances of the accused be thought of as a confession, a plea of guilty later withdrawn by leave of court, or an attempt to enter a plea of guilty upon certain promises having been made by an official. The same principles of law holding them to be inadmissible in the trial of the case apply. This is so because the promise of leniency, if relied upon by the accused, renders the confession involuntary in that it undercuts the accused’s waiver of trial by a jury and privilege against self-incrimination, both of which are waived by a plea of guilty.

In Williamson the confession itself did not refer to the promises of the officials. See 99 S.W.2d 78-79. It was the oral testimony of the sheriff that established the underlying promises giving rise to the confession. In the instant case, the affidavit and plea does not, on its face, refer to the agreement between the prosecutor and defense counsel which underlay the giving of the statement. The existence of the prosecutor’s promise or agreement in the instant case was admitted by the prosecutor and thus no testimony was needed on that matter.

The basis principle applicable to the instant case is most succinctly stated in the concluding paragraph of Abel at 8 S.W.2d 56: “If this had been an offer to compromise a civil action, it would have been privileged. We can see no good reason why it should not be so considered in a criminal action. The offer to plead guilty should have been accepted and sentence passed upon it, or it should have been rejected, and ‘never have been heard of again.’ The prosecuting attorney should not have been allowed to reject the conditional offer and afterwards use it against the defendant at the trial. The judgment is reversed, and the cause remanded.” (Emphasis added.)

More recently in Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), a conviction on a plea of guilty was vacated because the prosecutor did not perform his part of an agreement that was entered into between the prosecution and defense reference a plea of guilty. The court said, 404 U.S. 260, 261, and 262, 92 S.Ct. 498 — 499:

“The disposition of criminal charges by agreement between the prosecutor and the accused, sometimes loosely called ‘plea bargaining,’ is an essential component of the administration of justice. Properly administered, it is to be encouraged. If every criminal charge were subjected to a full-scale trial, the States and the Federal Government would need to multiply by many times the number of judges and court facilities.
“Disposition of charges after plea discussions is not only an essential part of the process but a highly desirable part for many reasons. It leads to prompt and largely final disposition of most criminal cases; it avoids much of the corrosive impact of enforced idleness during pre-trial confinement for those who are denied release pending trial; it protects the public from those accused persons who are prone to continue criminal conduct even while on pretrial release; and, by shortening the time between charge and disposition, it enhances whatever may be the rehabilitative prospects of the guilty when they are ultimately imprisoned. See Brady v. United States, 397 U.S. 742, 751-752, 90 S.Ct. 1463, 1470-1471, 25 L.Ed.2d 747 (1970).
“However, all of these considerations presuppose fairness in securing agreement between an accused and a prosecutor. . The plea must, of course, be voluntary and knowing and if it was induced by promises, the essence of those promises must in some way be made known. .
“ . . . [WJhen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.”

What is said supra of the federal courts is equally applicable to state courts.

In State v. Pughe, 403 S.W.2d 635, at 641 (Mo.1966), the court said, in referring to earlier cases: “They stand for the proposition that the appellate court should hold confessions inadmissible as a matter of law if upon consideration of all of the evidence in the transcript . . . it is conclusively shown that the confessions were involuntary.”

This court has considered all of the evidence in the transcript and holds that the affidavit and plea of guilty has been conclusively shown to be the product of plea negotiations between the prosecutor and defense counsel and was executed by the defendant pursuant to promises made by the prosecutor which were within his power and authority to perform; that the prosecutor withdrew from the arrangements after the affidavit was executed and filed and refused to perform his part of the bargain and, therefore, the affidavit and plea of guilty became involuntary in law and was not admissible on the trial of this case for any purpose whatever. In the words of State v. Abel, supra, “it should have been rejected, and ‘never have been heard of again.’ ” The same ruling is applicable to the cover letter of defendant’s attorney, state’s exhibit A — 1.

The admission of the affidavit and plea constituted prejudicial error and requires the judgment to be reversed and the cause remanded for new trial.

The following occurred during the cross-examination of defendant by the prosecutor.

“Q. Have you ever said that you were guilty with David Wayne Martin of robbing Orris Oliver Baker? A. I signed a statement to it, yes. Q. Was it a lie? A. I signed a statement to plead guilty for it.”

Defendant complains this was also error for the same reasons set forth supra to the admission of the conditional confession itself into evidence. The court’s holding as to the inadmissibility of the confession or affidavit itself applies with equal force to the prosecutor’s reference to that document or admissions made therein on cross-examination. This is so because the purpose of this trial was to determine whether defendant was guilty or not guilty of robbery and murder. This trial was not an inquiry into whether defendant had agreed at some earlier date to plead guilty pursuant to promises by the prosecutor. Here the affidavit was executed to obtain a particular agreed-upon result. That result was to be a conviction of robbery and a dismissal of the murder charge. When the result was aborted by the prosecutor’s change of mind, the words spoken or written by the accused to obtain that result must also go by the wayside.

To do otherwise would permit the prosecutor to make an agreement; obtain statements helpful to the prosecution pursuant to that agreement; break the agreement and yet have the full benefit of the bargain under the guise of impeachment or the elicitation of admissions on cross-examination which admissions were originally made upon a promise of leniency thereafter withdrawn.

When statements are obtained from an accused upon promises of leniency in return for a plea of guilty and the plea of guilty is aborted, the admissions obtained pursuant to the agreement, in the words of Meyers and Abel, supra, should “never have been heard of again”.

Defendant also contends as follows: “Defendant was denied his constitutionally protected right not to be subjected to punishment two times for the same crime by being tried, convicted and sentenced for robbery first degree on Count I of the information and being tried, convicted, and sentenced for murder first degree (felony murder), Count II of the information, in view of the fact that the robbery first degree alleged in Count I was an essential element of the murder first degree (felony murder) as alleged in Count II of the information.” The point is overruled. State v. Chambers, 524 S.W.2d 826 (Mo. banc 1975).

The judgment of the circuit court is reversed on both counts and the cause remanded for new trial.

All of the Judges concur.

      . “MR. ROBERTS: The Exhibit, State’s Exhibit A, which is now admitted into evidence is a document which reads as follows:

      . “Exhibit A-l is the stationery of Robert A. Mcllrath, Attorney 403 High Street, Flat River, Missouri. Telephone GEneva 1-2522 Area Code 314, Box 164, Zip Code 63602.
      ‘January 27, 1974
      Hon. J. O. Swink, Circuit Judge, and Hugh Roberts, Prosecuting Attorney:
      Enclosed you will find a statement under oath from Hoopes.
      I want this filed as he has stated under oath it could be used in court.
      Statement signed January 27, 1974, and signed by Hoopes.
      Robert A. Mcllrath’ signature at the bottom.”

      . “THE COURT: The first matter you wanted to confer with Mr. Mcllrath was about what?
      MR. ROBERTS: Oh, we can take it in almost any order. I imagine we ought to first take up the matter of Hoopes’ confession to robbery, which is part of the record.
      MR. McILRATH: Well, I thought you wasn’t goin’ to use that.
      MR. ROBERTS: I won’t use it against you, Mac. This is one of these times I’m going to have to make an apology to you.
      MR. McILRATH: Well, I can’t see that. MR. ROBERTS: I hope you understand.
      MR. McILRATH: I can’t see that, because you back out, you say you wasn’t gonna use that.
      MR. ROBERTS: My client is the State of Missouri.
      MR. McILRATH: I don’t care if your client is the State of Missouri.
      MR. ROBERTS: It is a statement made under oath.
      MR. McILRATH: I know it’s made under oath. We took it there so he couldn’t back out. But, I certainly — You said you wouldn’t use it and I depended on that, it on the grounds that we’d reached an Cause I had a time gettin’ that to try to save us time, I’ll tell you frankly that I did.
      He said no and I’ll just try it. He wouldn’t do it on the Saturday evening. Then his folks talked to me and they did.
      And, I’m certainly going to object to it. MR. ROBERTS: On what grounds?
      MR. McILRATH: I’m just going to object to understanding and that that was the reason I got it done.
      And, of course, I told him the Judge didn’t have to pay any attention to it. And, you told me you wouldn’t use it; that’s on what grounds.
      THE COURT: Do you want it marked as an exhibit and make it as an offer?
      MR. ROBERTS: Yes, sir.
      MR. McILRATH: Well, I want to object to it, cause certainly that was the understanding we had.
      MR. ROBARDS: Is that the original, Hugh?
      MR. ROBERTS: That’s a copy of the original. We request leave of Court to use a photostatic copy.
      MR. McILRATH: Well, I’m going to object to it for the reasons heretofore stated.
      I did put in there, because there’s been times he talked about pleading guilty before and he backed out, and he didn’t back out. You’re the one who backed out.
      MR. ROBERTS: I’d like to make a record on the—
      THE COURT: Go get the file. Are you sure it’s in here, the original?
      MR. ROBERTS: I mentioned it specifically to Doey Mell. I told her once a document was filed in the court record it could not be removed without this Court’s permission.
      THE COURT: Now, let’s see, wait. This is a copy.
      MR. ROBERTS: This is the original, which should have been filed.
      THE COURT: The original, yes. The original is the one that should be marked. Excuse me. I thought the original would be here. That’s the original. That’s no copy.
      MR. ROBERTS: That should have been put in the file also, I think.
      THE COURT: Let that be marked then as A — 1.
      Now, do you have your objection in?
      MR. McILRATH: You bet your life I have my objection in.
      THE COURT: I mean is there more you want to add?
      MR. McILRATH: You damn right I want to. When this case was set up and we were supposed to be over there on Monday to try it, and I wanted to save time and I — there was a promise by the Prosecuting Attorney that he’d dismiss the charge of murder if, I could, uh, get this statement. And, I didn’t want him backin’ out any more like he had two or three times he’d gone in there, because he’d refused on Saturday to give a statement. And, it was my understanding, and, with all fairness to everybody, so it wouldn’t pass another term, there’d be no way for him delaying it out, the term, that I did this. And it was done on the, on the recommendation, I mean on the recommendation it’d be let him enter a plea.
      And I think it’s, I just think it’s outrageous, that’s just exactly what I think. THE COURT: Well, I think I’ll have to overrule the objection in view, assuming that this last statement is in the defendant’s name—
      MR. McILRATH: It’s in the Defendant’s name, Judge. But, it was made with an understanding and I — it was made with the understanding on this plea, and they’re the ones that backed out, not me.
      THE COURT: Well, there’s nothing about any deal in the thing. And, as I say, the last statement is apparently written in his hand—
      MR. McILRATH: Yeah, I know.
      THE COURT: —T understand this may be used against me in a court of law.’
      MR. McILRATH: That’s exactly right. And, I had it written in there for the simple reason that on two or three occasions he had backed out on that thing, and the jury was coming in, and I didn’t wanna have them to come in again. I was trying to save the Court, the Prosecuting Attorney, and everybody time. And I think it’s — I think it’d be unfair to my client.
      As a matter of fact, I think the Bar Committee could probably work on it.
      MR. ROBERTS: This case was set for trial, I believe, some time back in December; I’d like to refer to it and find out what the exact date is.
      THE COURT: The only thing thereabouts is that October 17th, ‘Cause is continued to November Term.’ We can take judicial notice the November Term commenced the second Monday in November.
      MR. ROBERTS: I believe, then, it would of been on that date that Defendant’s Counsel and the Prosecutor did have a plea-bargain worked out.
      MR. McILRATH: Oh, we had it worked out—
      THE COURT: Well, let me interrupt. I think it goes to the credibility of, maybe, for a jury to pass on rather than for the Court to pass on.
      MR. McILRATH: Well, you certainly wouldn’t of gotten it if I hadn’t of tried to save everybody time and trouble, because on different occasions he had not — he’d come in and then he’d back out.
      MR. ROBERTS: That’s true. Every word you are saying is true.
      MR. McILRATH: Yeah, I know it’s true; wouldn’t say it if it wasn’t.
      MR. ROBERTS: However—
      MR. McILRATH: We had reached an agreement on this thing—
      THE COURT: Gentlemen—
      MR. McILRATH: Then you get these liars down here and change their mind.
      THE COURT: Off the record. Now, wait a minute, wait a minute.
      (Whereupon, a discussion was had off the record.)
      THE COURT: Now, what about prior convictions?


author: LAURANCE M. HYDE, Special Commissioner.

text:
    MISSOURI CITIES WATER COMPANY, a Missouri Corporation, Plaintiff-Appellant, v. CITY OF ST. PETERS, Missouri, a Municipal Corporation, Defendant-Respondent.
    No. 59184.
    Supreme Court of Missouri, Division No. 1.
    March 8, 1976.
    Edwards, Seigfreid, Runge & Hodge, Inc., Jerome W. Seigfreid and Edward D. Hodge, Mexico, for plaintiff-appellant.
    Rollin J. Moerschel, Niedner, Moerschel, Mack & Alheim, St. Charles, for defendant-respondent.
   LAURANCE M. HYDE, Special Commissioner.

Action in equity in which plaintiff sought to have declared unconstitutional § 250.190, RSMo 1969, which authorizes a city to supply water and sewer services outside its corporate boundaries and to restrain the city from operating its water and sewer system beyond its limits in competition with the existing system of plaintiff in some areas. Defendant filed a motion to dismiss for failure to state a claim upon which relief could be granted, which the court sustained and entered a judgment of dismissal. Plaintiff has appealed and we affirm.

Plaintiff, a privately owned corporation, had a Certificate of Public Convenience and Necessity issued by the Missouri Public Service Commission to serve certain areas of St. Charles County outside defendant city. Defendant city is a city of the fourth class which has had great growth in recent years and has been expanding its boundaries. Its population in the 1970 census was 518. At the time of the trial in July 1974 its population was estimated at about 4,000. Annexations of more adjoining areas were planned; and a two million dollar bond issue had been approved by the city’s voters for its water system improvements, including a lime softening treatment plant. At the time of the trial in July 1974, the annexation of more territory was pending, to be voted on at the August 1974 election. The city had state and federal grants which had been used to extend its water and sewer lines.

The principal statute involved, 250.190, is as follows: “Any such city * * * operating a sewerage system or a combined waterworks and sewerage system under this chapter shall have power to supply water services or sewerage services or both such services to premises situated outside its corporate boundaries and for that purpose to extend and improve its sewerage system or its combined waterworks and sewerage system.”

It is further provided by § 250.240: “It is the purpose of this chapter to enable cities, towns and villages and sewer districts to protect the public health and welfare by preventing or abating the pollution of water and creating means for supplying wholesome water, and to these ends every such municipality and sewer district shall have the power to do all things necessary or convenient to carry out such purpose, in addition to the powers conferred in this chapter. This chapter is remedial in nature and the powers hereby granted shall be liberally construed.”

Plaintiff says § 250.190 is vague and ambiguous because it cannot be determined with reasonable certainty the area in which a city may extend or improve its waterworks and sewer systems and so constitutes a taking of plaintiff’s property without due process of law. This contention does not consider § 250.240 stating the purpose of the authority given municipalities and the liberal construction required. Plaintiff’s claimed property is its right, under a Certificate of Convenience and Necessity from the Missouri Public Service Commission to engage in water and sewer service in St. Charles County. However, we have held that such a certificate does not grant the holder an exclusive right. In State ex rel. Union Electric Light & Power Co. v. Public Service Commission, 333 Mo. 426, 62 S.W.2d 742, 746 (1933), repeated in State ex rel. City of Sikeston v. Public Service Commission, 336 Mo. 985, 82 S.W.2d 105,110 (1935), we said: “Even though two power corporations may operate on the same schedule of rates, they may compete with each other in such matters as the character of service they render, the courtesy and efficiency of their employees in doing it, the modernization of their equipment and the economy of their operation, all of which are matters of some importance to consumers.”

We also noted in Sikeston case that “[MJunicipal ownership of such utilities is still provided for and we have held that they do not even come within the regulation of the act.” 82 S.W.2d 1. c. 110. As was also held in Jackson County Public Water Supply District No. 1 v. Ong Aircraft Corporation, 409 S.W.2d 226, 230 (Mo.App.1966): “If the legislature had intended to restrict the City as to where it could supply water, it could easily have done so by prohibiting it from entering water districts.” See also Otter Tail Power Co. v. United States, 410 U.S. 366, 93 S.Ct. 1022, 35 L.Ed.2d 359 (1973). Plaintiff further says § 250.190 does not clearly and specifically authorize the extension of sewer lines or water lines beyond city limits and could be reasonably interpreted to require areas seeking city service to connect with the city utilities at the corporate limits. We do not agree and hold that § 250.190 does authorize the extension of sewer lines and water lines beyond its limits. We consider this is made clear by § 250.240.

Plaintiff also says: “If it is to be inferred that the provisions of Section 250.190 grant authority to extend sewer and water lines beyond the corporate limits, then the application of the law in practice would permit any city to engage in the water and sewer service business wherever they chose limited only by the boundaries of the State of Missouri.” However, the evidence shows plaintiff has not and does not have any intention to engage in water and sewer service outside designated drainage areas which adjoin the city. If any city should seek to do more than that such a case can then be decided on the facts involved.

Plaintiff cites Missouri Public Service Co. v. City of Trenton, 509 S.W.2d 770 (Mo.App.1974), in which the city was enjoined from providing electric service to two residences outside the city from a transmission line constructed beyond its corporate limits for the lawful purpose of operating equipment at its sewer lagoons beyond its city limits. However, the basis of the court’s decision was that the General Assembly had given no authority for municipally owned electric utilities to have any such extra territorial powers. As shown by the statutes herein-above considered, this is not true as to authority of cities to provide water and sewer services.

Plaintiff also claims finding the application of § 250.190, RSMo 1969 constitutional, allegedly to protect the public health and welfare of nonresidents, exceeds the power delegated by the Legislature to protect the health and welfare of the residents of the municipality. Plaintiff cites no relevant authority for this contention and our view is that this contention cannot be sustained. It seems reasonable to consider that the health and welfare of people in areas adjoining a city into which it is extending its water and sewer lines is of some importance to people in the city. This would be especially true where a city is growing and expanding its boundaries. Furthermore, it has been held that Public Service Commission is not authorized to require a municipality to obtain a certificate of convenience and necessity to supply water to persons or corporations beyond its limits. Public Service Commission v. City of Kirkwood, 319 Mo. 562, 4 S.W.2d 773 (1928). In Speas v. Kansas City, 329 Mo. 184, 44 S.W.2d 108 (1931), it was held that a Missouri city could supply water to residents of another state. These decisions also determine the contention of plaintiff that the court erred in finding the application of § 250.190 constitutional in that the action of the city in extending water and sewer lines beyond its corporation limits exceeded the power delegated by the Legislature to protect the health and welfare of residents of the municipality. Plaintiff’s view is that this was to protect the health and welfare of nonresidents but we find it had a broader purpose than that, namely also the welfare of the residents of the city in many respects.

Plaintiff also claims that the basis for the court’s finding that § 250.190 authorized extending water and sewer lines beyond its corporate limits was to protect the health and welfare of nonresidents and that this exceeds the power delegated by the Legislature to protect the health and welfare of the residents of the city. This overlooks the fact hereinabove noted that the city is expanding its boundaries and also the liberal construction required by §§ 250.240 and 250.250. Plaintiff cites only Missouri Electric Power Co. v. City of Mountain Grove, 352 Mo. 262, 176 S.W.2d 612 (1944). That case involved an injunction against holding an election to issue bonds for purchase or construction of an electric light plant. This court held that the circuit court had no power to restrain the holding of that election. We do not consider it authority for plaintiff’s contention and plaintiff does not explain how it could be.

Plaintiff’s final contention is that the court erred in striking its Interrogatories filed June 27, 1974. Defendant shows that at that time the case was set for trial on July 17,1974, and all parties had agreed that the case was at issue and all discovery was complete. There were 83 interrogatories and subinterrogatories submitted and the court could reasonably have found they could not have been answered by time of trial. We do not consider the court’s action to be an abuse of discretion under these circumstances.

The judgment is affirmed.

PER CURIAM:

The foregoing opinion by LAURANCE M. HYDE, Special Commissioner, is adopted as the opinion of the court.

All of the Judges concur.


author: DONNELLY, Judge.

text:
    STATE of Missouri, Respondent, v. Leroy Allison JAMES, Appellant.
    No. 59173.
    Supreme Court of Missouri, Division No. 1.
    March 8, 1976.

      Lilley, Cowan & Love, Gary A. Love, Springfield, for appellant.
    John C. Danforth, Atty. Gen., Paul R. Otto, Asst. Atty. Gen., Jefferson City,'for respondent.
   DONNELLY, Judge.

This case involves a constitutional challenge to § 202.730, RSMo 1969, which reads, in part, as follows:

“If the person is found by the court or the jury to be a criminal sexual psychopath, the court may commit him to State Hospital No. 1 at Fulton where he shall be detained and treated until released in accordance with the provisions of sections 202.700 to 202.770 or may order such person to be tried upon the criminal charges against him, as the interests of substantial justice may require.”

On September 15, 1969, appellant was found by a jury to be a criminal sexual psychopath and was sentenced on October 3, 1969, to be committed to State Hospital No. 1 at Fulton.

On January 13, 1975, appellant filed his fifth petition for release under § 202.740, RSMo 1969, which statute reads as follows:

“At any time after commitment an application in writing setting forth facts showing that such criminal sexual psychopath has improved to the extent that his release will not be incompatible with the welfare of society, may be filed with the committing court. Whereupon the court shall issue an order returning the person to the jurisdiction of said court for a hearing. This hearing shall in all respects be like the original hearing to determine the mental condition of the defendant. Following such hearing, the court shall issue an order which shall cause the defendant either to be placed on probation for a minimum period of three years, or returned to the hospital; provided that upon the expiration of said probationary period and after further hearing by said court' to be held in accordance with the other provisions of sections 202.700 to 202.770, said psychopath may be discharged.”

On March 24, 1975, appellant was examined by two psychiatrists from the Mid-Missouri Mental Health Center. On June 30, 1975, Dr. Dana L. Solem, one of the psychiatrists, testified at an evidentiary hearing that appellant has an antisocial personality, that he could not say that appellant can be cured, and that he found no reason to believe that appellant’s antisocial nature would change if he were released back to society.

The trial court overruled the petition for release; found “there is a reasonable classification so far as the equal protection clause goes;” and found “that the defendant has not been shown free of criminal propensities to the commission of sex offenses or to be considered as not dangerous to others or that his release would not be incompatible with the welfare of society.” An appeal was then taken to this Court.

Appellant asserts that the Criminal Sexual Psychopath Law denies him equal protection “in that all individuals adjudicated criminal sexual psychopaths are not committed to State Hospital No. 1, and the distinctions which arise from this disparity in treatment are such as to constitute invidious discrimination and are constitutionally impermissible.” He contends that had he been tried on the criminal charges, (1) he would have had an opportunity to secure his freedom through an additional jury trial, (2) a more stringent burden of proof would have been imposed on the State, (3) if convicted, he would have known the length of his sentence, and (4) in order to secure his freedom, he would not be required to meet an affirmative burden of proof as to his mental condition.

In Baxstrom v. Herold, 383 U.S. 107, 111, 86 S.Ct. 760, 763, 15 L.Ed.2d 620 (1966), the United States Supreme Court said: “ ⅜ * Equal protection does not require that all persons be dealt with identically, but it does require that a distinction made have some relevance to the purpose for which the classification is made.”

In Marshall v. United States, 414 U.S. 417, 418, 94 S.Ct. 700, 702, 38 L.Ed.2d 618 (1974), the Court “granted certiorari to consider petitioner’s claim that the provisions of Title II of the Narcotic Addict Rehabilitation Act of 1966, 18 U.S.C. §§ 4251-^1255, deny due process and equal protection by excluding from discretionary rehabilitative commitment, in lieu of penal incarceration, addicts with two or more prior felony convictions.”

The Court held the Act does not constitute a denial of equal protection, and said (414 U.S. at 422, 427 and 428, 94 S.Ct. at 704, 706, 707):

“Petitioner concedes that the concept of equal protection as embodied in the Due Process Clause of the Fifth Amendment, see Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954), does not require that all persons be dealt with identically, but rather that there be some ‘rational basis’ for the statutory distinc- . tions made, McGinnis v. Royster, 410 U.S. 263, 270, 93 S.Ct. 1055, 1060, 35 L.Ed.2d 282 (1973), or that they ‘have some relevance to the purpose for which the classification is made.’ Baxstrom v. Herold, supra, 383 U.S. at 111, 86 S.Ct. [760] at 763 [15 L.Ed.2d 620]; Rinaldi v. Yeager, 384 U.S. 305, 309, 86 S.Ct. 1497, 1499, 16 L.Ed.2d 577 (1966). See also James v. Strange, 407 U.S. 128, 92 S.Ct. 2027, 32 L.Ed.2d 600 (1972); Humphrey v. Cady, 405 U.S. 504,92 S.Ct. 1048,31 L.Ed.2d 394 (1972).
* * »jc ⅜: * ⅜
“When Congress undertakes to act in areas fraught with medical and scientific uncertainties, legislative options must be especially broad and courts should be cautious not to rewrite legislation, even assuming, arguendo, that judges with more direct exposure to the problem might make wiser choices. Accordingly, it would have been a permissible choice for Congress to permit discretionary inclusion in NARA programs of those whose prior offenses were determined to be addiction related or motivated. Such a discretion might appropriately have been vested in the trial judge much in the manner in which he is now required to exercise his discretion under § 4252 in determining whether the defendant is an addict who is likely to be rehabilitated through treatment. That Congress has not yet chosen to so provide, however, does not render constitutionally impermissible its decision to limit treatment to those with less than two prior felony convictions. Williamson v. Lee Optical Co., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955); Dandrige v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970); McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961); Jefferson v. Hackney, 406 U.S. 535, 92 S.Ct. 1724, 32 L.Ed.2d 285 (1972).”

In our view, the Missouri Criminal Sexual Psychopath Act does not constitute a denial of equal protection. In State v. McDaniels, 307 S.W.2d 42, 44 (Mo.App.1957), the Court spoke of the Act as follows:

“The scope and purpose of this Act was fully considered by the supreme court en. banc in State ex rel. Sweezer v. Green, 360 Mo. 1249, 232 S.W.2d 897, and by this court in State ex rel. Kirks v. Allen, Mo.App., 255 S.W.2d 144. It is settled that the Act is constitutional; that a proceeding thereunder is of a civil nature and not criminal; that it declares the public policy of the state; that the general purpose of the Act is to detain, treat and care for a person found to be a criminal psychopath with the hope his condition will improve; and also to protect the public against his depredations.”

In our opinion, “the general purpose of the Act”, as enunciated in McDan-iels, supra, demonstrates a rational and relevant basis for the distinction made. We further believe the Act appropriately vested discretion in the trial judge to determine in what manner appellant should be detained. Marshall v. United States, supra. We recognize that, on the evidence adduced, there is a possibility that appellant cannot be cured. However, “[t]here can be little doubt that in the exercise of its police power a State may confine individuals solely to protect society from the dangers of significant antisocial acts * * *. Cf. Minnesota ex rel. Pearson v. Probate Court, 309 U.S. 270, 60 S.Ct. 523, 84 L.Ed. 744 * (O’Connor v. Donaldson, 422 U.S. 563, at 582 and 583, 95 S.Ct. 2486, 2497, 45 L.Ed.2d 396, Burger, C. J., concurring.)

The judgment is affirmed.

All concur.