author: MANFORD, Judge. NUGENT, Judge,

text:
    STATE of Missouri, Respondent, v. Mark ROGERS, Appellant.
    No. WD 34596.
    Missouri Court of Appeals, Western District.
    March 27, 1984.
    Motion For Rehearing and/or Transfer to Supreme Court Overruled and Denied May 29, 1984.
    Application For Transfer Sustained July 17, 1984.
    Retransferred Jan. 29, 1985.
    Court of Appeals Opinion Readopted Feb. 6, 1985.

      James W. Fletcher, Public Defender, Sean D. O’Brien, Asst. Public Defender, Kansas City, for appellant.
    John Ashcroft, Atty. Gen., Carrie Francke, Asst. Atty. Gen., Jefferson City, for respondent.
    Before PRITCHARD, P.J., and NU-GENT and MANFORD, JJ.
   MANFORD, Judge.

This is a direct appeal from a jury conviction for murder, first degree, in violation of § 565.003, RSMo 1978. The judgment is affirmed.

Appellant presents three points, which in summary charge that the trial court erred in (1) admitting, over objection, appellant’s statements to police, because said statements were secured after the police failed to scrupulously honor his assertion to remain silent; (2) failing to instruct the jury-on murder, second degree; and (3) denying his motion for new trial because of juror misconduct.

There being no direct challenge to the sufficiency of the evidence to sustain appellant’s conviction, a summary of the pertinent facts suffices.

The location of this murder was the One Stop Liquor Store at 291 Highway and Courtney Road in Sugar Creek, Missouri. At about 6:30 p.m. on November 27, 1979, one Deborah Ward, a regular customer of the store, purchased some items. As she left, she observed three long-haired white males in a dark blue station wagon. (Later, at trial, she testified that the three acted suspicious, as if they intended to rob the store. Ward thought one of the trio looked like appellant.) The One Stop store was owned and operated by Pat Short and her husband, Marvin “Lou” Short. The store contained a living area in the rear. At about 8:30 p.m. on November 27, 1979, someone entered the store and Marvin “Lou” Short went to the front portion of the store. Moments later, Pat Short heard her husband say, “Don’t do it. It’s not worth it.” Pat Short then heard a young man reply, “I need the bread man.” Realizing something was wrong, Pat Short proceeded to look for a weapon in the back room. She heard a “pop”, turned, and saw her husband on the floor. She called the police and then ran next door for help. Upon her return, she went to her husband, who died while she was holding him. Marvin “Lou” Short died as a result of a fatal shotgun wound.

On December 1, 1979, a robbery involving the use of a shotgun was reported to police. A Metro Squad Unit homicide detective, Clarence Luther, responded to the call. Luther secured a description of the vehicle used and later stopped this vehicle, then being operated by appellant. When stopped, this vehicle was occupied by appellant, two small children, Steven Johnson, Mark Fletcher, and Gaye Handley. The vehicle was heavily damaged, including the trunk area. Because of the damage, Luther could see into the trunk area where he observed a single-barrel .12 gauge shotgun. Inside the vehicle were several live .12 gauge shells and one spent shell casing. At this time, Luther arrested appellant. A search of appellant’s person produced additional live .12 gauge shells.

Later, on December 1, 1979, appellant was given his Miranda warning and asked about the Short murder. Appellant denied that he murdered Short. On December 4, 1979, appellant was again given his Miranda warning and again was asked by Luther about the Short murder. In talking with Luther, appellant stated that he did not intend to kill anyone. At this point, appellant stated that he did not want to talk anymore and that he wanted “to take his chances with a jury” or words to that effect. Luther terminated the inquiry.

Two other detectives, Herb Soule and Stanley Love, were assigned to return appellant to the Jackson County jail. While handcuffing appellant, Soule told appellant that he (Soule) had heard that appellant would rather take his chances with a jury than to discuss the matter. Love asked appellant if that was what appellant had previously stated. Appellant responded affirmatively “at the present time.” Soule then asked appellant if appellant still felt that way. Appellant appeared to hesitate. Soule then asked appellant if he (appellant) wanted to know “what he was up against.” Appellant answered, “Yes, I do”, and Soule then read a portion of the Missouri capital murder statute to appellant. Appellant then advised Soule that he wanted to talk to him. Soule told appellant that he (appellant) did not have to talk to him (Soule) and Soule again gave appellant his Miranda warning. After signing a written waiver of his rights, appellant gave Soule a statement about the robbery and murder of Marvin “Lou” Short.

In summary, appellant’s written statement disclosed that on November 27, 1979, appellant picked up Steven Johnson in a black two-door Fairlane. Appellant and Johnson drove to a wooded area where Johnson had hidden a .12 gauge shotgun. The two drove around discussing, a robbery to obtain monies to buy drugs. Johnson mentioned that he had seen “an old man” in a liquor store. The two discussed the robbery of the One Stop Liquor Store. The two entered the One Stop Liquor Store, with appellant pointing a shotgun at Marvin “Lou” Short. Appellant stated to Short, “Give me all your money.” Short gave appellant money from his pockets and appellant demanded money from the cash register. At that moment, appellant’s attention was directed to his accomplice, Johnson, and as appellant again turned to see the victim Short, the victim was pulling out a handgun. Appellant then murdered Short with the shotgun. Appellant and Johnson fled the scene.

On December 5, 1979, Officer Luther, after learning that appellant had given a written statement to Officer Soule, contacted appellant. Again, Luther gave appellant his Miranda warning and asked appellant about minor discrepancies in his (appellant’s) statement.

Appellant’s statements, oral and written, were the subject of a pre-trial motion to suppress. After a full hearing, the trial court overruled the pre-trial motion. At trial, both the oral and written statements of appellant were, over objection, admitted into evidence. Appellant testified on his own behalf, denying any involvement in the Short murder, and testified that he gave both the oral and written statements, because he was tired of being transferred from one jail to another and he wanted to contact his family. Appellant’s defense was alibi, in being at the home of his parents at the time the murder was committed. The jury returned its verdict. A hearing was held on appellant’s motion for new trial and that motion was overruled. Judgment and sentence was entered. This appeal followed.

Turning to appellant’s point (1), it is found that appellant charges that the trial court erred in admitting his statements to police, over objection, because said statements were secured after police officers failed to “scrupulously honor” his assertion of his fifth amendment rights.

Appellant’s point (1) fails because the record does not support his claim that his fifth amendment rights were not “scrupulously honored.” The evidence clearly reveals that appellant “initiated” the second conversation relative to the Short murder. The following evidence reveals this for the court:

“Q. Would you tell the Court what that conversation was?
A. I was preparing to take him out of the cell. As a matter of fact, I did remove him from the detention cell and handcuffed him — or started to handcuff him and told Mr. Rogers that I was of the understanding that he had stated he would rather take his chances with a jury than talk to us. And I asked him if he was sure that was what he wanted to do...
Q. And when you asked him that, what was his reply?
A. Well, he kind of hesitated, first, and didn’t make any reply. And then I asked him if he wanted to know what he was up against.
Q. And what did he do when you asked him that question?
A. He said, ‘Yes, I do.’
Q. And then what did you do?
A. I instructed one of the officers that was standing there to go and bring me a copy of the Missouri Revised Statutes book.
Q. And did you get that copy?
A. I did, sir.
Q. And what did you do with that statute book?
A. I opened the statute book to the capital murder section and read the criteria in that section to Mr. Rogers and explained to him that that was the very worst classification of crime that he could be charged with, that at a jury’s option it could go from there to acquittal or anyplace in between...
Q. And, again, why was it that you read him that statute?
A. Because the man indicated his desire to know what he was up against...
Q. After you read him the statute, did he make any statements to you in regards to whether or not he wanted to make a statement?
A. Yes, sir, he did.
Q. And what did he say?
A. He said he would like to talk to me...
Q. Now, once he told you that he wished to talk with you, what did you do?
A. I took him into the office belonging to the chief of police and advised him of his Miranda warning...
Q. When you went into the office and you read him his rights, did you read that to him orally?
A. I gave him a recitation of it. I didn’t read it from anything.
Q. Did you tell him anything else after you read him his rights?
A. Yes, sir. I told him that if he wanted to talk to us about it he would have the option of whether we wrote anything down or whether he just talked to us and we didn’t write anything down.
Q. Did you tell him that he didn’t have to talk with you?
A. Yes, sir. I told him that several different occasions, at different times during the evening.
Q. Did you ever specifically tell him he didn’t have to talk with you, after the situation in the holding area, where you read him the statute?
A. Yes, sir. I told him that at the initial advisement of the Miranda.
Q. And did you tell him that before you asked him any questions?
A. Yes, sir, I did.”

The record further reveals that by appellant’s own testimony, he understood and voluntarily waived his rights after he initiated the conversation with Officer Soule and prior to his giving the confession. The record reveals the following:

“Q. Now, you heard the officer say that before you gave the written statement they told you you didn’t have to make a statement. Did they tell you that?
A. Yes.
Q. They did tell you you didn’t have to make that statement?
A. Yes.
Q. And that was after they had given you a Miranda, orally, isn’t that right?
A. Yes.
Q. And after they gave you your Miranda rights that are contained in one full page on State’s Exhibit No. 4. is that right?
A. Yes.”

The record further reveals that during the initial interrogation (on December 1, 1979) by Officer Luther, appellant was first given his Miranda warning. Appellant signed a written waiver. During this interrogation, appellant orally stated, “I didn’t mean to kill him.” At this point, appellant advised Luther that he did not wish to talk further and stated that he would take his chances with a jury. Luther terminated the interrogation.

While being prepared for the return to the county jail, another officer (Soule) told appellant that he had heard that appellant would rather take his chances with a jury than discuss the matter. Appellant hesitated, and Soule asked appellant if he knew what he was up against and if he wanted to know. Appellant said yes. Soule read portions of the Missouri capital murder statute to appellant. Appellant told Soule that he would talk to him, did so, and in fact gave Soule a written confession describing in detail how the murder occurred. It was appellant and not the officer who initiated the subsequent discussion of the Short murder.

Before giving the written statement to Soule, appellant was advised that he did not have to talk to Soule. Soule also gave appellant his Miranda warning and appellant again signed a written waiver of his rights contained on the first page of his written statement. The record reveals that at no time was appellant ever threatened or coerced. No request for counsel was ever made by appellant.

Appellant’s contention that the reading of portions of the Missouri capital murder statute amounted to “coercion” of appellant is nothing more than a conclusion not supported by the facts upon the record. The record reveals Soule told appellant that he (Soule) had learned that appellant desired to take his chances with a jury rather than discuss the matter. Appellant was hesitant in response to Soule’s statement. Soule then asked if appellant “knew what he was up against” and if appellant wanted to know what that was, to which appellant answered yes. This led to a reading of the Missouri law by Soule. There was no mention by Soule or anyone else of appellant giving a statement. At this point, appellant told Soule he wanted to talk to him. Soule repeatedly told appellant that appellant did not have to talk to him. Appellant was again given his Miranda warning, and signed a written waiver. No offers or promises were made to appellant.

The record reveals that from the whole of the record, appellant’s rights were “scrupulously honored” as mandated by Michigan v. Mosley, 423 U.S. 96, 104, 96 S.Ct. 321, 326, 46 L.Ed.2d 313 (1975), in following the rule announced in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

As noted in Mosely, the rule in Miranda does not prohibit subsequent interrogation of an accused. Nor does Mosely require that the subsequent interrogation be upon or regard an offense which was not the subject of the original interrogation. See also State v. Royal, 610 S.W.2d 946, 948 (Mo. banc 1981). Such a ridiculous suggestion is one that has been engrafted onto Mosely by the dissent herein. The court in Mosely, after explaining that subsequent interrogation is permissible if the rights of the accused are otherwise protected, then emphasized that rule by pointing out that Mosely was interrogated about a different and unrelated criminal act.

The entire question presented in Mosely is not even present in the instant case, because the record herein clearly reveals that appellant, and not law enforcement officers, initiated subsequent or further discussion surrounding the Short murder. What the record before this court reveals is that this case comes within the rule recently restated in United States v. Hackley, 636 F.2d 493, 499 (D.C.App.1980) which states, “[E]ven though a defendant invokes the right to be silent, this invocation may also be revoked or waived. United States v. Rooks, 577 F.2d 33, 37 (8th Cir.1978), cert denied 439 U.S. 862 [99 S.Ct. 183, 58 L.Ed.2d 171] ...” Appellant herein told Officer Soule that he wanted to talk to him. The instant case more clearly comes within the rule of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). See also United States v, Bentley, 726 F.2d 1124 (1984).

It should be noted at this point that there is absolutely no evidence of any coercion of appellant to make the statement. Appellant’s actions herein are analogous to the defendant in State v. Olds, 603 S.W.2d 501 (Mo. banc 1980). See also State v. Taylor, 559 S.W.2d 35, 37 (Mo.App.1977) and State v. Kimball, 613 S.W.2d 932, 941 (Mo.App. 1981).

Perhaps just as applicable at this point is the further rule that the constitutional rights of an accused are premised upon whether any inculpatory statement has been given voluntarily, and our courts “[i]n such circumstances must look to the totality of the circumstances surrounding the admission of the statement to determine if it was made voluntarily, Boulden v. Holman, 394 U.S. 478, 480, 89 S.Ct. 1138, 1139, 22 L.Ed.2d 433 (1969); United States v. Harden, 480 F.2d 649, 650 (8th Cir. 1973).” Hackley at 499. See also Kimball at 942.

In cases where the admission of an inculpatory statement was voluntarily made, the state bears the burden of proving it was voluntarily given. State v. Campbell, 612 S.W.2d 371 (Mo.App.1980). The state in the instant case carried that burden.

If the above-referred-to portion of the record does not, in the minds of some, completely refute that appellant was properly afforded his Miranda warning, then perhaps the following rule will further aid the determination of the question. It has been held, “Further, with regard to the second interrogation, Miranda warnings need not be given each time the accused is questioned. Miller v. United States, 396 F.2d 492 (8th Cir.1968), cert. denied, 393 U.S. 1031 [89 S.Ct. 643, 21 L.Ed.2d 574] (1969)...” State v. Woodward, 587 S.W.2d 287, 289 (Mo.App.1979). See also State v. Brockman, 634 S.W.2d 575, 577 (Mo.App.1982); State v. Brown, 601 S.W.2d 311, 313 (Mo.App.1980); and Joyce v. State, 637 S.W.2d 386, 387 (Mo.App.1982).

As noted above, the evidence upon the instant record reveals that appellant initiated the subsequent or further discussion of the Short murder which led to his execution of a written confession. Assume for the moment and simply for the sake of discussion that the conversation between appellant, Soule and Love was a “special circumstance” which led to his “involuntary confession”, appellant could still not prevail because it was incumbent upon appellant to have presented evidence supporting such a contention. State v. Ross, 606 S.W.2d 416, 425 (Mo.App.1980). At trial, appellant never made such an assertion or offer any evidence of any “special circumstances.”

From the record, it is clear exactly what occurred. Appellant was first interrogated by Officer Luther, during which appellant refused to continue the conversation. Luther terminated the interrogation. Later, Officers Soule and Love mentioned to appellant that they heard appellant had chosen to take his chances with a jury. These officers then asked appellant if he was aware of “what he was up against and would he like to know.” Appellant advised these officers that he would like to know, and in response, the officers read a portion of the Missouri capital murder statute. At this point, appellant freely and voluntarily told Officer Soule that he wished to talk further with the officer. This latter action by appellant led to his signing a confession. At trial, appellant, by his own testimony, does not even challenge or refute the events testified to by Soule and Love.

What is obvious from this record is the challenge (by a pre-trial motion to suppress) by appellant to a statement voluntarily given by appellant, which contained obvious inculpatory statements concerning his direct participation in the murder. The record clearly reveals this challenge to be nothing more than an afterthought in preparation for trial.

As a part of his argument under his point (1), appellant further contends that his statements were inadmissible because the police knew he was a drug addict. This contention is as groundless as appellant’s contention that his rights were not “scrupulously honored” because by appellant’s own testimony, it is shown that he was not, at the time he gave his statements, under the influence of drugs. There is no evidence that appellant’s ability to comprehend and understand was impaired. Assuming arguendo that appellant had been under the influence of drugs, that factor alone would not necessarily render appellant’s statements involuntarily. United States v. Smith, 608 F.2d 1011 (4th Cir. 1979).

There is absolutely no evidence upon the record herein that Sgt. Soule “undercut” defendant Rogers “previous decision not to answer.” That statement by the dissent is without any basis in fact.

In summary, point (1) is ruled against appellant because the evidence upon the record herein clearly and without contradiction reveals that appellant voluntarily initiated the subsequent or further discussion concerning the Short murder. The record reveals that appellant did so by his request to talk further with Sgt. Soule after appellant, Soule and Love discussed “what appellant was up against.” As also noted, there is no evidence of coercion or impairment of appellant’s ability to comprehend or act. The simple fact is that the rules in Miranda, Mosely, and other authority cited herein were adhered to and appellant’s rights to remain silent were at all times “scrupulously honored.”

Appellant’s point (1) is meritless and is ruled against him.

Under his point (2), appellant charges that the trial court erred in failing to submit to the jury an instruction on murder, second degree, MAI-CR2d 15.14.

The record reveals that the trial court submitted proper instructions on first degree felony murder and manslaughter. The record is equally as clear that there is no evidence upon the record to support the submission of an instruction upon murder, second degree.

What the evidence does show is that appellant and Johnson entered the One Stop Liquor Store for the express purpose of committing an armed robbery to secure monies to support a drug habit. During the commission of the robbery, appellant murdered the victim, Marvin “Lou” Short. Since appellant offered an alibi defense, the only evidence regarding any charge of murder was that which supported the offense of felony murder, first degree, and not murder, second degree.

An instruction on murder, second degree, even if such offense is an offense included in murder, first degree, is not required in every murder first degree case and an instruction on murder, second degree, is required only if “justified by the evidence.” State v. Pettis, 655 S.W.2d 513 (Mo. banc 1983).

Appellant’s reliance upon State v. Donovan, 631 S.W.2d 39 (Mo.1982) is misplaced because unlike Donovan, the evidence herein is an unequivocal account of the commission of a murder during and as part of the commission of another felony, to commit armed robbery. See State v. Olds, supra.

Appellant’s point (2) is meritless and is ruled against him.

Under his final point (3), appellant charges that the trial court erred in overruling his motion for new trial because of juror misconduct.

A full hearing on appellant’s post-trial motion was held by the trial court. Two jurors were called and testified. Juror Powell testified that during jury deliberations, she told the other jurors that Steven Johnson had pleaded guilty to the same offense and had been sentenced. Juror Miller testified that she was told about Johnson and that it influenced her decision to change her vote from not guilty to guilty. The trial court ordered the testimony of these jurors stricken upon the prosecution’s motion that said juror testimony was offered for the purpose of impeaching the verdict. The trial court then overruled appellant’s motion for new trial.

Appellant’s reliance upon § 547.020, RSMo 1978 goes wanting for the lack of any evidentiary basis to support the application of that statute.

The record herein reveals references to Johnson during the course of trial. In addition, Juror Powell could not and did not testify at the post-trial hearing as to where she obtained the information concerning Johnson. This jury was never separated. There is no evidence that Juror Powell obtained this information from any improper source or that any impropriety arose relative to her having obtained such information.

What the record reveals is, because of the absence of any evidentiary basis as to the source of Juror Powell’s information concerning Johnson, an attempt by appellant to impeach the jury’s verdict. Missouri follows the strict rule prohibiting the impeachment of a verdict by jurors. State v. Davis, 529 S.W.2d 10, 15 (Mo.App.1975); State v. Foster, 490 S.W.2d 659 (Mo.App. 1973).

Appellant’s reliance upon State v. Malone, 333 Mo. 594, 62 S.W.2d 909 (1933) is misguided as Malone is clearly distinguishable because the issue in Malone was juror misconduct in using a telephone during deliberations and which included the overhearing of improper remarks by other jurors. There is no evidence upon this record to show any juror misconduct.

The granting of a new trial based upon juror misconduct lies within the discretion of the trial court and a ruling thereon will not be disturbed absent an abuse thereof. Foster, supra; State v. McCall, 602 S.W.2d 702 (Mo.App.1980). The question of abuse by the trial court does not even arise in the instant case because there is no showing of any juror misconduct.

Appellant’s final point (3) is meritless and is ruled against him.

Judgment affirmed.

PRITCHARD, P.J., concurs.

NUGENT, J., dissents in a separate dissenting opinion.

NUGENT, Judge,

dissenting.

I must dissent. Defendant Rogers’ first point on appeal charges that the trial court erred in admitting defendant’s inculpatory statements to police. He contends that after he had decided to remain silent the police failed to “scrupulously honor” his right to cut off questioning and thereby obtained the damaging statements.

On December 1, 1979, Detective Clarence Luther arrested defendant, gave him his Miranda warnings and questioned him about the murder of Marvin “Lou” Short. Rogers denied committing it. On December 4, Luther again advised the defendant of his constitutional rights and interrogated him about the Short homicide. During that interrogation, defendant told Luther that he would tell the detective all about it in detail and that he did not intend to kill anyone. He then stopped, paused a long time and then said to Luther, “I don’t want to talk anymore,” and that he would “take his chances with a jury.” Detective Luther honored the defendant’s request and stopped the questioning at about 5:00 p.m.

Two other detectives, Sgt. Herb Soule and Stanley Love, were then assigned to take the prisoner to the county jail. Both officers knew that defendant had invoked his Fifth Amendment privilege. While handcuffing him, Sgt. Soule told defendant that he had heard that Rogers “would rather take his chances with a jury than talk to us.” Detective Love, having heard that Rogers wanted to take his chances with a jury, asked him if that is what the defendant had said. Rogers replied, “Yes, at the present time.” Sgt. Soule then asked Rogers if he was sure that was what he wanted to do. Rogers “kind of hesitated” and made no reply. Noting defendant’s hesitation, Soule asked Rogers if he wanted to know “what he was up against,” and the defendant said that he did. At that point, Soule read to the defendant a portion of the Missouri capital murder statute, including the death penalty provisions. Defendant then told Soule that he wanted to talk to him. (This exchange lasted only three to five minutes.) The detectives then took the defendant into an office and advised him of his rights; defendant signed a written waiver and began an oral narrative. At about 8:15 p.m., Rogers signed a statement disclosing that he had shot Mr. Short in the course of a robbery.

Defendant’s exercise of his right to remain silent is not at issue in this case. Defendant told Detective Luther that “he did not want to talk anymore.” Sgt. Soule testified that he told defendant that “he had heard that defendant would rather take his chances with a jury than discuss the matter with us.” Detective Love testified that he also had asked Rogers if that was what he had said. That testimony establishes not only that Rogers had invoked his Fifth Amendment privilege, but also that Sgt. Soule and Detective Love were aware of his exercise of that constitutional right.

Without question, Clarence Luther “scrupulously honored” Rogers’ “right to cut off questioning.” Michigan v. Mosely, 423 U.S. 96, 104, 96 S.Ct. 321, 326, 46 L.Ed.2d 313 (1975). He had immediately stopped questioning Rogers when the defendant told the officer that he wanted to remain silent.

The only issue is whether defendant’s “right to cut off questioning” was “scrupulously honored” by Sgt. Soule. Id. Whether the trial court erred in admitting defendant’s statement turns on the resolution of that issue because under Miranda “the admissibility of statements obtained after the person in custody has decided to remain silent depends on whether ‘ “his right to cut off questioning” ’ was ‘ “scrupulously honored” ’ ” Id.

In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Court held that when a person in custody indicates that “he wishes to remain silent, the interrogation must cease.” Id. at 473, 86 S.Ct. at 1627. In 1975, the Court in Michigan v. Mosely, supra, held that Miranda does not “create a per se proscription of indefinite duration upon any further questioning by any police officer on any subject, once a person in custody has indicated a desire to remain silent.” Id. 423 U.S. at 103-04, 96 S.Ct. at 326. The Court further explained that:

A reasonable and faithful interpretation of the Miranda opinion must rest on the intention of the Court in that case to adopt ‘fully effective means ... to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored_’ 384 U.S., at 479, 86 S.Ct., at 1630. The critical safeguard identified in the passage at issue is a person’s ‘right to cut off questioning.’ Id., at 474, 86 S.Ct., at 1627. Through the exercise of his option to terminate questioning he can control the time at which questioning occurs, the subjects discussed, and the duration of the interrogation. The requirement that law enforcement authorities must respect a person’s exercise of that option counteracts the coercive pressures of the custodial setting. We therefore conclude that the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his ‘right to cut off questioning’ was ‘scrupulously honored.’

The Mosley court explained that police can fail scrupulously to honor the decision of a person to cut off questioning either by “refusing to discontinue the interrogation upon request or by persisting in repeated efforts to wear down his resistance and make him change his mind.” Id. at 105-06, 96 S.Ct. at 327. Finding that the police did neither of the above, the Court held that the defendant’s “right to cut off questioning” in that case was fully respected. Id. at .104, 96 S.Ct. at 326.

In Michigan v. Mosley, defendant Mosley was in custody for robberies. When advised of his Miranda rights, Mosley said that he did not want to discuss the robberies. The officer “immediately ceased the interrogation and did not try either to resume the questioning or in any way to persuade Mosley to reconsider his position.” Id. at 104, 96 S.Ct. at 327. After more than two hours time had elapsed, another police officer questioned Mosley at another location about an unrelated hold up murder. Before that questioning, however, the police officer advised the defendant of his constitutional rights. Based on these facts, the Court held that this was not a case “where the police failed to honor the decision of a person in custody to cut off questioning, either by refusing to discontinue the interrogation upon request or by persisting in repeated efforts to wear down his resistance and make him change his mind.” Id. at 105-06, 96 S.Ct. at 327.

Obvious factual similarities do indeed exist between this case and Mosley. In both cases, the defendants initially had been given Miranda warnings, both defendants had invoked their right to remain silent, and in both eases two hours had passed before the defendants were again confronted by police officers. From this point, however, the facts of the two cases differ significantly.

In this case, Sgt. Soule approached the defendant after the two hours had passed and began talking to him without giving him a fresh set of Miranda warnings as was done in Mosley. Although Sgt. Soule did give defendant Rogers his Miranda warnings after Rogers stated that he wanted to talk and immediately before the defendant confessed, Sgt. Soule did not read defendant his rights before he addressed statements and questions to defendant that “undercut” Rogers’ “previous decision not to answer” questions concerning the Short murder. Mosley, supra, at 105-06, 96 S.Ct. at 327-28.

Another significant difference between this case and Mosley is that Sgt. Soule questioned defendant Rogers about the same crime, that is, the Short murder. In Mosley the Court repeatedly emphasized the fact that the second interrogation was “restricted ... to a crime that had not been a subject of the earlier interrogation.” Id. at 106, 96 S.Ct. at 327. And the Court found that the second officer “did not undercut Mosley’s previous decision not to answer” the first detective’s questions because the second officer’s interrogation “focused exclusively on ... a crime different in nature and in time and place of occurrence from the robberies for which Mosley had been arrested and interrogated by” the first officer. Id. at 105, 96 S.Ct. at 327.

Sgt. Soule’s comments, questions and reading of the statute to the defendant before he re-advised the defendant of his rights was an attempt “to persuade ... [defendant] to reconsider his position” and did “undercut” defendant Rogers’ “previous decision not to answer” questions about the murder. Id. The attempt to persuade is the point of focus. An incriminating statement which is the product of police persuasion of a suspect in custody is, in the words of the Supreme Court, “the product of compulsion, subtle or otherwise.” Miranda v. Arizona, supra, 384 U.S. at 474, 86 S.Ct. at 1628.

Sgt. Soule testified that while he was handcuffing Rogers he told Rogers that he had heard that the defendant “would rather take his chances with a jury than to talk to us.” Then he began to try to persuade the defendant. He asked the defendant whether he was sure that was what he wanted to do. Rogers hesitated but made no reply. During this exchange, Detective Love elicited from Rogers his explicit reiteration of his desire to take his chances with a jury and not to talk. Rather than abandoning such questions at that point, after the defendant exercised his Fifth Amendment privilege by remaining silent and by explicit response to Love, Sgt. Soule “persist[ed] in repeated efforts to wear down his resistance and make him change his mind,” Michigan v. Mosley, supra, 423 U.S. at 105-06, 96 S.Ct. at 327, by asking the defendant if he wanted to know what he “was up against.” The defendant said, “Yes,” but that response did not waive his earlier exercise of his privilege to remain silent and right to cut off questioning. Nonetheless, Sgt. Soule read to the defendant the capital murder statute, including the death penalty portion. His purpose could only have been to persuade the defendant to talk and to obtain an incriminating statement from him.

After all of that, the defendant said that he wanted to talk. At that point Sgt. Soule read defendant his rights and obtained a confession. Soule succeeded “by persisting in repeated efforts to wear down [the defendant’s] resistance and make him change his mind.” Id. In doing so, he failed to “scrupulously honor” defendant Rogers’ decision to “cut off questioning.”

Although Missouri courts have concluded that officers may ask an individual who has invoked his right to remain silent whether he has changed his mind, officers may not attempt to persuade the individual to do so. Nor may they continue to question him. State v. Kimball, 613 S.W.2d 932, 941-42 (Mo.App.1981); State v. Taylor, 559 S.W.2d 35, 37 (Mo.App.1977). In both Kimball and Taylor, the officers advised defendants of their rights and the defendants immediately indicated that they did not wish to talk. The officers asked no questions at that time. In each case, sometime later officers asked the defendant if he wished to talk or make a statement. In response to these single inquiries, the defendants in both cases replied that they did want to make a statement. The statements were held to be admissible in those cases; the officers had scrupulously honored the defendants’ right to cut off questioning. The defendants were asked only one thing: whether or not they wanted to talk. And after being asked this question one time, the defendants replied that they did want to talk. They were not “repeatedly questioned nor was there any persuasion or inducement to make a statement.” Taylor, supra, at 37.

This ease is distinguishable. Defendant Rogers made no reply when Sgt. Soule asked him whether he was sure he wanted to take his chances with a jury and not talk to the officers. Rogers did not change his mind about talking after a single inquiry as did the defendants in Kimball and Taylor. Rather, defendant Rogers changed his mind and decided to give a statement only after repeated effort by Sgt. Soule. The officer did not scrupulously honor defendant’s right to cut off questioning. Michigan v. Mosley, supra; Miranda v. Arizona, supra.

Besides Kimball and Taylor, the only other Missouri case the majority opinion relies on is State v. Olds, 603 S.W.2d 501 (Mo.1980) (en banc). The majority says that Rogers’ voluntary agreement to confess was the same as the accused’s conduct in State v. Olds, supra. In Olds the court held that the defendant’s recorded statements were admissible because the defendant had voluntarily, knowingly and intelligently waived his Miranda rights, but the court did not address the issue whether the officer scrupulously honored the defendant’s right to cut off questioning. The court had no need to reach that issue because it found that the defendant’s merely indicating his “desire that the tape recorder be turned off is not equivalent to invoking his Fifth Amendment privilege against self incrimination.” Id. at 507. Thus, State v. Olds does not address the issue in this case.

The trial court erred in not suppressing the evidence of defendant’s December 4 oral and written confessions to Sgt. Soule and Detective Love and the December 5 reiteration and expansion of those confessions made to Detective Luther growing out of defendant’s confessions to Soule and Love.

On this ground alone, the defendant is entitled to a new trial.

      . The investigation had revealed that appellant is a drug addict and in his statement, hé disclosed using drugs on the morning of November 27, 1979.

      . Detective Love's memory differs from Sgt. Soule’s. Love testified as follows regarding Rogers’ reaction to Sgt. Soule's comments to the defendant before that officer read the capital murder statute: “I think Mr. Rogers volunteered. I think Mr. Rogers made the statement, Is it too late to change my mind?" Sgt. Soule, at the pretrial hearing and at trial, testified, however, that the defendant did not tell the officer that he wanted to talk until after he heard the statute read.


source: Caselaw Access Project

author:
PREWITT, Judge.
      GREENE, Chief Judge,

license: Public Domain

text:
    Alice J. PARKER, Plaintiff-Respondent, v. Ronald A. BRUNER, Defendant-Appellant.
    No. 13313.
    Missouri Court of Appeals, Southern District, Division Three.
    July 19, 1984.
    Cause Retransferred from Supreme Court Jan. 15, 1985.
    Motion for Rehearing and to Transfer to Supreme Court Denied March 5, 1985.
    Application to Transfer Denied April 2, 1985.

      James E. Reeves, Caruthersville, for plaintiff-respondent.
    Russell X. Thompson, Memphis, Tenn., Hal E. Hunter, Jr., New Madrid, for defendant-appellant.
   PREWITT, Judge.

Based upon a claim of seduction, plaintiff received a verdict for twenty-five thousand dollars actual damages and fifty thousand dollars punitive damages. Judgment was entered accordingly and defendant appeals.

We first mention defendant’s contention that the trial court erred in overruling his motion for judgment notwithstanding the verdict because the action of seduction violates his constitutional rights. This point is set out in full below. This contention was first raised in defendant’s after trial motions.

To raise and preserve a federal or state constitutional question for appellate review, it must be raised at the first available opportunity. State v. Tatum, 653 S.W.2d 241, 243 (Mo.App.1983); Kansas City v. Howe, 416 S.W.2d 683, 686 (Mo. App.1967). It is obvious that this contention could have been raised earlier by a motion directed at the petition and during the trial. As this point was not preserved for review, it is denied.

The next contention of defendant that we discuss is his assertion that the evidence was insufficient to support the cause of action “because there was no evidence that Appellant had made any promise or other inducement of marriage, other false promises, artifices or solicitations; nor that Appellant made any promise, statement, or other inducement regarding marriage, knowing it to be false; nor that Respondent relied upon any such promise or inducement in consenting to sexual intercourse with Appellant; nor that Respondent surrendered her chastity because of any promise made by Appellant.”

In reviewing a claim that the evidence is insufficient to support the verdict, we consider the evidence and reasonable inferences therefrom most favorable to plaintiff. Ogle v. Webb, 623 S.W.2d 582, 583-584 (Mo.App.1981).

There are two elements of seduction which defendant contends were lacking in proof. These elements are described in Breece v. Jett, 556 S.W.2d 696, 707 (Mo. App.1977), as (1) conduct of the defendant consisting of “solicitations, importunities, misrepresentations, knowingly false promises or artifices, including a false promise to marry for the purpose of seduction”, and (2) intercourse occurring “because of the false solicitations, importunities, false promises or false promise to marry”. See also Greco v. Anderson, 615 S.W.2d 429, 431 (Mo.App.1980); Piggott v. Miller, 557 S.W.2d 692, 695 (Mo.App.1977).

Viewed in the light most favorable to plaintiff, we find that the evidence was sufficient to supply these elements.

At the time they met plaintiff was 23 years of age and defendant 34. She was a nursing student and he a practicing dentist. Defendant had previously been married and divorced. Plaintiff testified that she had not previously engaged in sexual intercourse.

They met at an apartment swimming pool in Caruthersville, Missouri on August 18,1979. He had an apartment there. She lived in Caruthersville and was visiting a friend who lived in the apartment house. They started dating the next day and saw each other every weekend for several months. She was attending college at Murray State University in Murray, Kentucky, and would either come home on weekends or he would go there or they would go somewhere else.

They took several trips together between their meeting and November 21, 1979, when their first sexual intercourse took place at his apartment. Plaintiff testified that on these trips she resisted his sexual advances and either stayed in a separate room or in a separate bed in the same room. She did so because she had religious beliefs that she should not have sexual intercourse until she was married.

Plaintiff said she believed that because of defendant’s prior marriage it was difficult for him to have a relationship without sex. She told him she wanted to wait until she was married, and she suggested that he might date others but he said “I don’t want anybody else, Alice. I want you, I want a life with you and that’s all I want.”

Plaintiff testified that he frequently told her he loved her, and wanted to express his feelings through making love to her. Defendant testified that he did not love her and never told her that. She said he often talked about “[w]hen we get married” and what they might do “[i]n our marriage”. She said that defendant told her “he did want me to marry him.”

After they had dated several weeks he was “very persistent” and they had arguments over her refusal to consent to sexual intercourse. When he told her that he did not want to have sexual relations with any other woman “he looked like he was gonna cry. He, he was real upset. I’ve never seen him that upset that much, seemed like he cared that much.”

She said she finally consented to have sexual relations with him “after all that time and all that fighting. I’m not sure exactly how it happened, I just know it happened, and I, and I know that I, that I loved him and I know that I believed that he loved me and I know that I felt that we were gonna have a life together, otherwise I wouldn’t of.”

After two pregnancies, the first terminated by a voluntary abortion, their relationship ended when plaintiff refused to follow defendant’s insistence that she have a second abortion.

A jury could find that in order to convince her to engage in intercourse with him he falsely said that he loved her and that they would be married when he did not intend to marry her. There was evidence that they went so far as to obtain a marriage license after the first time she became pregnant and he indicated that he would marry her and then declined. However, that does not establish that his promises were not falsely made for the purpose of inducing her to engage in intercourse a considerable time previously.

Defendant’s discussion of their future marriage, when he admittedly did not love her, creates a strong inference that he never intended to marry her and combined with his false statements about loving her indicates that he was making the statements to induce her to have intercourse. She testified that she took these statements to be an indication that they would be married and that he loved her and in reliance upon them, she engaged in intercourse with him.

The jury obviously rejected defendant’s testimony that they first had intercourse on September 9, 1979, and that before it he had only told her that he “enjoyed being with her.” He testified that she was the aggressor but he did “[n]ot strongly” resist.

Although the plaintiffs evidence, if believed, may indicate naiveness on the part of plaintiff, whether she believed the things said was for the jury. They may have determined that this was a situation where a college student with little worldly experience and no previous serious romantic involvement or sexual experience was misled and seduced by a sexually experienced older professional man. There was evidence that he was making $285,000 annually and was able to buy her gifts and take her on expensive trips. His attention and statements may have been such that would prevent an inexperienced woman such as plaintiff from comprehending his true objective.

Defendant’s contention that plaintiff did not make a submissible ease for the jury’s consideration is denied. Compare the evidence here with that in Boedges v. Dinges, 428 S.W.2d 930 (Mo.App.1968).

We next discuss defendant’s contention that the trial court erred in allowing plaintiff’s attorney to read excerpts from defendant’s deposition. Defendant raises several objections to the use of the deposition, none of which have any validity. The full point is set out below.

The deposition of a party may be used by an adverse party for any purpose. Rule 57.07(a)(2); City of Town and Country v. St. Louis County, 657 S.W.2d 598, 608 (Mo. banc 1983); Teachenor v. DePriest, 600 S.W.2d 122, 125 (Mo.App.1980).

In respect to admissions against interest the deposition of a party is like any other evidence. A statement made in a deposition relevant to the issues may be admitted against the deponent as admissions against interest in the same or another action to which he is a party, even though he is present in court and able to testify, or has testified. Teachenor v. DePriest, supra, 600 S.W.2d at 125. There is no requirement that notice be given to defendant’s counsel that plaintiff’s attorney would read admissions from it.

If the admissions were made, whether the deposition was filed would not make any difference. Filing it could bear on the proof showing that the statements were made, but here that defendant said them was not questioned.

This point is denied.

We next discuss defendant’s contention that the trial court erred in overruling his motion in limine. The point contends this allowed plaintiff to present evidence of “continued sexual relations between the parties on a regular basis for over a period of more than two years after the first act of intercourse and the alleged seduction, and also allowed the Respondent to present evidence of her abortion, a subsequent pregnancy, the birth of a child almost two years subsequent to the alleged seduction, pre-natal expenses incurred by Respondent and many other facts and circumstances which were not relevant to the alleged seduction”. The full point is set out below. After the motion was overruled no objections were made as the evidence was presented.

It could be questioned whether this point is before us as the overruling of a motion in limine cannot by itself be reversible error, and after the denial of a motion in limine a timely objection is required to preserve the point for appellate review. Peters v. Henskaw, 640 S.W.2d 197, 201-202 (Mo.App.1982).

However, due to an indication that there may have been a “standing” objection to this evidence, apparently based on the motion in limine, we discuss this point further.

The motion in limine sought to limit the evidence presented by the plaintiff “to the first act of intercourse between the parties”. The body of the motion is set out in full below. As the point indicates and as counsel confirms in oral argument, the contention regarding this evidence is not the same as that presented to the trial court by the motion. In oral argument before us defendant’s counsel admitted that evidence of the parties’ relationship following the initial act of intercourse would have been admissible on the issue of damages until the “intervening” acts of the abortion and defendant telling plaintiff he would not marry her.

It is obvious then that the motion was sought to prevent at least some evidence that defendant now acknowledges was admissible. Defendant has thus admitted that the motion was improper as presented and should have been denied. The argument now presented is that after the abortion and defendant’s refusal to marry plaintiff, no further evidence of their relationship nor of the second pregnancy and birth of the child should have been allowed. Defendant now says that it was the intervening cause of the abortion and the refusal to marry that terminated the evidence. This is a different argument than made before the trial court. A party cannot change his theory of objection on appeal and have it preserved for review. “[N]o allegations of error shall be considered in any civil appeal from a jury tried case except such as have been presented to or expressly decided by the trial court.” Rule 84.13(a). See also Walker v. Woolbright Motors, Inc., 591 S.W.2d 289, 291 (Mo.App.1979).

Even if the contentions now made are essentially the same as presented to the trial court, there still could not be error in the ruling complained of. The trial court did not rule that the evidence now complained of in this point was admissible. By overruling the motion it indicated that some evidence of the parties’ acts following the initial intercourse may be admissible. The point contends that the trial court erred in overruling the motion in limine. Defendant now admits that the motion was not correct as some of the evidence it sought to prevent was admissible, so there could be no error in overruling it. This point is denied.

We next discuss defendant’s contention that the trial court erred in allowing plaintiffs child to remain in the courtroom and in not granting relief in other particulars regarding the child. Defendant’s full point is set out below.

We conclude that the court’s rulings in regard to the child were not an abuse of discretion. In Rehg v. Giancola, 391 S.W.2d 934, 937 (Mo.App.1965), the court said:

“In this state in criminal actions where a defendant’s liberty, or even his life, is at stake, it has been held that the exhibition of an infant is within the sound discretion of the court, [citing cases] If such is permitted in criminal cases it can hardly be said that the discretion of the trial court would not be extended to the showing of a child in a civil case.”

Evidence regarding the child came in without objection. Seeing the child thereafter would not be so prejudicial as to constitute an abuse of discretion. This contention is denied.

Defendant asserts in his remaining point that an instructional error was committed. This allegation was not mentioned in defendant’s motion for new trial so it is not before us. Rule 70.03; Rule 84.13; Romines v. Donald Maggi, Inc., 636 S.W.2d 130, 132 (Mo.App.1982).

The judgment is affirmed.

CROW, P.J., and HOGAN and MAUS, JJ., concur.

GREENE, C.J., dissents and files Dissenting Opinion.

GREENE, Chief Judge,

dissenting.

To me, there are at least three reasons why the judgment in this case should be reversed. The first is the very nature of the cause of action itself. Seduction is a common law remedy, whose roots are in ancient times. It was formerly an exclusive action by a father to collect for the loss of services of his daughter who had usually became impregnated by some local swain. In time, the courts came to realize that the loss of services claim was fictional, and permitted the woman to sue in her own name, seeking damages for loss of reputation, embarrassment, etc. See Prosser, Law of Torts, 4th Ed., pp. 885-886 (1971).

In the entire legal history of the state of Missouri, there have only been 20 appellate decisions in seduction cases, starting with Carder v. Forehand, 1 Mo. 704 (1826), in which case $40 in damages was awarded, to Greco v. Anderson, 615 S.W.2d 429 (Mo. App.1980), which acknowledged that the action of seduction is a common law tort bottomed in fraud. Most of these decisions occurred in the 19th century. The time has come to judicially repudiate this ancient doctrine which was artificially created by the courts of Missouri over 150 years ago. The doctrine is sexist, socially unwise, and subject to great abuse, as it provides a fertile field for blackmail, extortion and perjury, since it calls for no proof, according to the majority opinion, other than the allegations of the allegedly deflowered female, plus a pregnancy to justify her claim for damages.

The one-time held notion that women are “the weaker sex” is a myth, as modern women are not easily misled by panting males with sexual propositions. This is especially so when the woman in question is a mature adult. Here, the woman in question was 26 years old and a registered nurse at the time of her second impregnation by Bruner. At trial, she talked learnedly of condoms, IUD’s, foam, withdrawal, and other contraceptive methods. Their sexual encounters, by her own words, lasted from at least November of 1979 until April of 1982, punctuated by Bruner giving her at least $4,000 in the form of 17 checks, stays in hotels and motels throughout the country, and two pregnancies, one ending by voluntary abortion in January of 1981, and the second resulting in the birth of a child in 1982. To say that a seduction action could be maintained under such facts amounts to a perversion of justice. See Breece v. Jett, 556 S.W.2d 696, 707-708 (Mo.App.1977) for a similar view.

While this court cannot abolish the cause of action by judicial fiat, the Supreme Court of Missouri, which created the doctrine, can. Abernathy v. Sisters of St. Mary’s, 446 S.W.2d 599-605-6 (Mo. banc 1969); Anderson v. Cahill, 528 S.W.2d 742, 749 (Mo. banc 1975). The doctrine should be abolished, and this case is a proper vehicle to do so.

The second reason why I disagree with the majority opinion is that in Missouri a seduction action is a species of fraud and the evidence to support a judgment in such cases must be clear, cogent, and convincing. Such evidence must show that the defendant knowingly made false representations, including a false promise to marry, for the purpose of seduction, which causes a chaste unmarried woman to consent to sexual intercourse. The evidence must show that the woman had a right to rely on the false promises, that she did rely on them, and, that as a result of such reliance, engaged in sexual intercourse with the defendant. Breece v. Jett, supra, at 707.

The only evidence that shows a promise made by Bruner to Alice was her testimony regarding an implied promise to marry her before the first act of sexual intercourse and promises thereafter, and before her first pregnancy that he “would make an honest woman” out of Alice if she became pregnant. The mere fact that Bruner did not marry her after she became pregnant is not enough, standing alone, to maintain Alice’s burden of proof by clear, cogent, and convincing evidence in an actionable fraud cause. Brennaman v. Andes & Roberts Brothers Const. Co., 506 S.W.2d 462, 465 (Mo.App.1973). There would have to be clear, cogent and convincing evidence that at the time he promised to marry her, Bruner had no intention of doing so.

While fraud, grounded on a concealed intention not to perform a certain promise, may be inferred from facts and circumstances [Wattach v. Joseph, 420 S.W.2d 289, 294 (Mo.1967), cert. denied, 389 U.S. 953, 88 S.Ct. 335, 19 L.Ed.2d 362 (1967) ], in this case there are no such facts and circumstances to justify such a premise. Here, there was not only a complete failure of proof that Bruner did not intend to hon- or his implied promises to marry Alice when he made them, there was evidence, such as buying her an engagement ring and applying for a marriage license, that showed he actually took steps to perform that promise, but later changed his mind.

Under such facts, Alice did not make a submissible case. Dillard v. Earnhart, 457 S.W.2d 666, 671 (Mo.1970); Bauer v. Adams, 550 S.W.2d 850, 853-854 (Mo.App. 1977); Grosser v. Kandel-Iken Builders, Inc., 647 S.W.2d 911, 915 (Mo.App.1983). I do not find any actionable fraud and, therefore, no seduction from the facts in this ease. I believe the trial court committed prejudicial error in denying Bruner’s motion for judgment in his favor. Assuming the validity of the seduction doctrine, I would reverse the judgment outright for failure of plaintiff to make a submissible case.

The final reason why the trial court’s judgment should not stand is that, assuming that the tort of seduction should continue to be a viable doctrine in Missouri, and that plaintiff made a submissible case, the evidence submitted as proof of damages, over the standing objection of defendant following the overruling of his motion in limine, was far in excess of that permitted by law.

The tort of seduction allows recovery for loss of chastity. Continuation of sexual relations by the parties after the first such encounter does not cause a continuing tort, or series of torts. While it has been judicially recognized that a woman whose chastity has been compromised can reform, and thereafter be seduced again, such reformation presupposes a termination of the original relationship, and a new inducement in order to allow her to be compromised again. Absent such a reformation, which is not even claimed by plaintiff here, the seduction is complete on the date when the woman’s chastity was originally compromised, which occurred here in November of 1979, if one believes Alice was seduced. Greco v. Anderson, 615 S.W.2d 429, 431 (Mo.App.1980).

Even if Alice was to be permitted to show as damages, as some ancient cases suggest, her first pregnancy and ensuing abortion, there is nothing that I know of that should permit her, after she knew Bruner would not marry her if she became pregnant, to introduce evidence, over objection, of her second pregnancy and subsequent birth of her child, as there is not a scintilla of evidence that she was induced by new false promises to resume her sexual relationship with Bruner. The majority opinion dodges this issue by attempting to split hairs over the fact that since the motion in limine sought to exclude all evidence of sexual contact after the first time, the failure to state in the motion that some of the evidence might be admissible and some not was fatal to defendant’s claim. I find no basis in law for such reasoning.

After being given a free lane and a fast track by the trial court on this issue, plaintiff’s counsel proceeded to make the most of it. In addition to Alice’s testimony concerning the birth of the child and its rejection by Bruner, there was evidence that her lawyer brandished the baby in Bruner’s face in the jury’s presence, demanding that he acknowledge his son. Alice also fondled and played with the baby in the jury’s presence, over objection. In my opinion, what occurred here was a circus, not a trial. I believe the trial court erred in overruling the motion in limine, at least to the extent of allowing evidence of sexual relations after the abortion, the ensuing second pregnancy, and the birth of the child. This error would justify reversal and remand, if I am wrong in my first two reasons given for reversal.

For the reasons stated, I respectfully dissent. I request that this case be transferred to the Supreme Court after opinion for re-examination of existing law, and further, because the majority opinion is in conflict with existing Missouri appellate decisions (Breece v. Jett and Greco v. Anderson, supra) in that those decisions require proof of seduction by clear, cogent, and convincing evidence, and it is obvious that the majority opinion does not require such proof. Rules 83.01 and 83.02, V.A.M.R.

      . THE TRIAL COURT ERRED in overruling Appellant’s motion for judgment notwithstanding verdict on the basis that the cause of action of seduction is violative of Appellant's rights to equal protection and due process under the 5th and 14th Amendments to the United States Constitution because the action of seduction, as defined by Missouri Law and as applied to Appellant in this case, is unconstitutional and unfairly and unreasonably discriminates against Appellant because of his sex, and places a different burden on males than upon females with respect to the tort of seduction, and further, because the tort of seduction, under Missouri law, may only be committed by a male upon a female and, therefore, constitutes gender-based and unlawful discrimination against Appellant because of his sex.

      . THE TRIAL COURT ERRED in overruling Appellant’s objections to counsel for Respondent reading selected excerpts from the Appellant’s pre-trial deposition to the jury because said deposition had not been properly filed with the Court pursuant to Missouri Rule of Civil Procedure 57.07(d)(4), and because no notice had been given to the Appellant’s counsel that said deposition was to be used as evidence and Appellant’s counsel was therefore unable to prepare for the said deposition being read by making the proper pre-trial objection to inadmissible testimony, and because the deposition had been taken pursuant to the Respondent’s original petition, count one for paternity, and therefore, the deposition was irrelevant to Respondent’s amended petition for seduction and was immaterial, and the reading of the deposition was further improper because the Defendant was present in the courtroom at the time the deposition was read to the jury and said readings were not admissions against interest, nor used for impeachment, but were selective readings of portions of the deposition which included leading questions and hearsay testimony.

      . THE TRIAL COURT ERRED in overruling Appellant’s motion In Limine to limit the Respondent's evidence to the facts and circumstances reasonably related to the first sexual intercourse between the parties because the tort of seduction is not a continuing tort, and the Court’s ruling allowed the Respondent to present evidence of continued sexual relations between the parties on a regular basis for over a period of more than two years after the first act of intercourse and the alleged seduction, and also allowed the Respondent to present evidence of her abortion, a subsequent pregnancy, the birth of a child almost two years subsequent to the alleged seduction, pre-natal expenses incurred by Respondent and many other facts and circumstances which were not relevant to the alleged seduction and which were not proximately caused by the alleged act of seduction, and which were so remote in time and unconnected from the original alleged act of seduction as to be wholly improper, inflammatory and highly prejudicial none of which were relevant to the issue before the Court.

      . Comes now the defendant and moves the Court to limit the evidence presented by the Plaintiff herein to the first act of intercourse between the parties, which according to Plaintiffs Petition occurred November 21, 1979. That this is a suit for seduction and that the material evidence would only have to do with the first act of intercourse, which according to Plaintiffs Petition occurred November 21, 1979, which would be the seduction, and any additional or other acts of intercourse between the parties would be totally immaterial and made only to prejudice or inflame the jury.

      . THE TRIAL COURT ERRED by allowing the Respondent’s infant child to remain in the courtroom during the trial and by denying Appellant’s motion to exclude the child and Appellant’s motion for a mistrial after the Respondent brought the infant child to the counsel table with her, in front of the jury, and while the Judge was out of the courtroom during which time Respondent displayed and played with the infant child for some time in front of the jury; and the trial Court further erred in permitting Respondent's attorney to go out of the courtroom and bring the Respondent’s infant child in the presence of the jury and confront the Appellant with the infant child with the question, "Isn’t this your child? because the question of paternity and the fact that there was a child born more than two years after the alleged act of seduction occurred was irrelevant to Respondent’s seduction claim, and the display of the child in the manner described had the effect of inflaming and prejudicing the jury against Appellant and engendering sympathy toward the respondent and the child. Further, the trial Court erred in not granting a mistrial for the reason that the question of paternity was admitted by Appellant and the action for paternity by Respondent was dismissed prior to the trial and was, therefore, not at issue.

      . This footnote was added by the author of the opinion after its initial circulation and the voting on it.
      The dissent requests that this matter be transferred to the supreme court for two reasons, reexamination of the existing law and because this opinion is in conflict with Breece v. Jett, supra, 556 S.W.2d 696, and Greco v. Anderson, supra, 615 S.W.2d 429, as those decisions require proof of seduction by clear, cogent and convincing evidence.
      Transfer for the purpose of reexamining the existing law requires an order by a majority of the participating judges. Mo. Const. Art. V, § 10; Rule 83.02. A majority has not ordered transfer here.

        Greco does not mention the standard of proof necessary in a seduction action. Breece states that seduction is a species of fraud and the evidence to support it must be clear, cogent and convincing. 556 S.W.2d at 707. That is not the general rule as to fraud. Crawford v. Smith, 470 S.W.2d 529, 531-532 (Mo. banc 1971). See also In the Matter of the Estate of Mitchell, 610 S.W.2d 681, 687-688 (Mo.App.1980). The practicality of such a standard in a seduction case can be questioned.
      If such actions are to be maintained, and it is not for this court to make that determination, that standard could create an insurmountable burden. The intercourse and such acts as show that the female consented because of misrepresentation are not likely to occur before others and knowledge of them is most often limited to the participants.
      The statement in Breece is dictum and may not be in conflict with this opinion. However, as transfer because the majority opinion is contrary to a previous decision of an appellate court of this state is the prerogative of a dissenting judge, see Mo. Const. Art. V, § 10, Rule 83.01, whether transfer is proper on that ground is not for the other participating judges to decide. On that basis this case is being transferred as requested in the dissent.


author: SHANGLER, Judge.

text:
    SALISBURY R-IV SCHOOL DISTRICT, Appellant, v. WESTRAN R-I SCHOOL DISTRICT, Respondent.
    No. WD 35248.
    Missouri Court of Appeals, Western District.
    Dec. 26, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied March 5, 1985.
    Application to Transfer Denied April 2, 1985.

      Edward L. Fitzgerald, Downey, Sullivan & Fitzgerald, Kansas City, for appellant.
    Robert L. Swearingen, Gary A. Tatlow, Hulen, Hulen, Tatlow & Gump, Moberly, for respondent.
    Before DIXON, P.J., and SHANGLER and SOMERVILLE, JJ.
   SHANGLER, Judge.

The appeal involves a claim by Salisbury R-IV School District to recover taxes on personal property within its boundary, but erroneously assessed and levied as within the Westran R-I School District and paid to that entity. The suit is against Westran for the money had and received from that levy. The trial court denied the petition.

Salisbury and Westran are duly constituted school districts within Randolph County. The focus of contention is a drag-line leased by the Associated Electric Cooperative of Springfield, and physically sited within the Salisbury boundary. The drag-line had an assessed value for tax purposes of $2,819,000 on January 1, 1981, and yielded $78,954.40 in revenue for that year. The list of Associated Electric property subject to assessment on that date as submitted by the taxpayer to the Randolph County assessor, however, reported that the dragline was located within the Wes-tran district. The assessor, in turn, entered the dragline in the tax books as located within the Westran borders. The assessor then, by June 1, 1981, delivered the completed tax book to the county clerk. The county clerk, in turn, prepared a Notice of Aggregate Valuation — a list of the composite valuations of all real, personal and other tangible property subject to taxes within a school district — and certified that information to each, Salisbury and Westran. The function of the Notice is to enable a school district [among the other political subdivisions] to fix a property tax levy for the revenues required for its annual budget. [See § 164.001 RSMo 1978, as amended.] Thus, the Notice declares only an aggregate valuation, and does not describe the individual properties within each district which compose the valuation. It was on the basis of the Notice that Salisbury fixed a proposed levy of $3.05 per one hundred dollars of property valuation, and Westran a levy of $2.80, in the Estimate of Required Local Taxes submitted to the county clerk. The levy, as extended on the tax book by the county clerk, estimated a yield of $1,447,524 in local taxes for Wes-tran and $39,168 for Salisbury for budget year 1981-1982. The tax book was delivered by the county clerk to the county collector by November 1 of the year as the law requires, and Associated Electric paid the tax assessed on the dragline, by the Westran levy, $78,954.40, to the assessor on December 30, 1981.

Then, on January 13, 1982, the superin-tendant of schools, McGuire, of the Salisbury district learned that the dragline was within the boundary of that district, but by error was assessed as property within the Westran district. The next day, McGuire notified the county clerk of the discovery, and she informed him that the dragline tax [$78,954.40] was collected, but not yet disbursed. Salisbury then brought a petition in three counts and joined the judges of the county court, the assessor, the clerk, the treasurer and the collector, all as parties defendant. The counts — for writ of prohibition, for injunction, and for declaratory judgment — sought to prevent the disbursement of the dragline tax revenue to Wes-tran and to adjudicate that Salisbury was the lawful payee of the tax. Westran was joined as a necessary party to the count for declaratory judgment. The court denied the writ of prohibition and the injunction counts. The plaintiff Salisbury requested no order for final judgment as to either count, nor is the propriety of either adjudication a subject on this appeal. The tax money from the dragline was thereupon distributed to Westran. The count for declaratory judgment, still unruled and so pendent, was amended into a claim for money had and received by Westran. The county officials were dismissed as defendants, and the trial was conducted between Salisbury and Westran as the sole principals.

In the rendition of judgment for Westran on the Salisbury claim for money had and received, the trial court entered findings of fact and conclusions of law. The court adopted the rationale of Pleasant View Reorganized School District Number 1 v. Springfield Reorganized School District Number 12, 341 S.W.2d 853 (Mo.1961) to sustain judgment. Salisbury contends that the facts in Pleasant View are not comparable, and so the principle of that decision is not an apt precedent.

Pleasant View — contrary to contention — posed the same issue of law as confronts us and on a matrix of facts identical

in essence. In that case [as here] one school district [Pleasant View] sued to recover taxes paid to another school district [Springfield] upon property erroneously assessed as within Springfield, but actually within the Pleasant View boundary. The court denied the petition for money had and received. The supreme court prefaced exposition of the rationale with the acknowl-edgement that the remedy asserted by Pleasant View was on a theory in vogue in some jurisdictions, but compatible with neither our statute law, policy, nor judicial precedent.

The plaintiff school district in Pleasant View argued as the premise for recovery the reasons given by the majority in School District No. 8, Shawnee Township, Wyandotte County v. Board of Education of Kansas City, 115 Kan. 806, 224 P. 892 (1924). That case presented the typical conundrum: the county assessor erroneously listed property as within the taxable situs of one school district — which then imposed a levy on that property and received the taxes collected on the levy — and the school district within which the property was actually sited sued to recover from the recipient school district a sum equal to the amount receivable had its levy been extended against the taxable value of the property. The supreme court of Kansas allowed the cause of action on the premise that [l.e. 894]:

For the purpose of maintaining schools the territory of a state is divided into school districts, or their equivalent, and the schools of each district are supported by taxes on the property of that district. In order to enable them to discharge their functions, school districts are constituted quasi municipal corporations, with boards of officers for governing bodies. Each district as a public functionary has a right to receive taxes from the taxable property in its territory. In this respect distncts stand toward each other very much as private proprietors, each of whom is entitled to the revenues from his own domain. If a common overseer make a mistake and place in the treasury of one revenue produced by the property of the other, the estate of the one is benefited at the expense of the other, and the misplaced money is money had and received by one for use and benefit of the other, [emphasis added]

The dissent refused the analogy drawn by the majority between the school district role as a private proprietor and the taxable property within the district as an owned estate. [l.c. 894]:

[PJlaintiff and defendant are not private corporations. While they hold title to school sites and sehoolhouses, etc., they do not enjoy the general property rights of natural persons. They are merely legislative agents to receive and disburse what the Legislature provides for them through administration of a taxation scheme by another set of legislative agents. While schools are supported under our system by taxes laid on property within the district, the quasi corporation has no legal right to taxes from such property, as a landowner is entitled to rent of his own land. Taxes are not a part of a school district’s estate as rents are part of a landowner’s estate, and we are not warranted in carrying over into the field of school taxes the legal implications from the private property relation, [emphasis added].

The dissent then concluded that, as between such legislative agents, the consequences of an official assessment error— where the budget procedures are otherwise conformed to law — are only benign [l.c. 894]

What happened was this: Plaintiff and defendant in perfect innocence and good faith acted upon the county clerk’s certificate of amount of taxable property in its district, made levies according to its need, and received and expended the money. The treasuries of the two taxing bodies were not affected. Defendant received no money beyond its necessities. It neither levied nor was paid any taxes for use of plaintiff, and it had and received no sum in taxes, which it ought not to have received. Defendant had no estate which was augmented by what it received. Plaintiff had no estate which was diminished by what defendant received.... [emphasis added]

The theory formulated by this dissent— that a school district does not own the taxes from the encompassed territory, but merely administers the legislative scheme which empowers a district to fund the school budget from taxes imposed on its own estimate and collected from its own levy — was acknowledged in Fall River Joint Union High School District v. Shasta Union High School District, 104 Cal. App. 444, 285 P. 1091 (1930) and then more fully developed.

Fall River posed the issue [l.c. 1092]: The question really at issue is whether money received by one district, from lands apparently but not legally within its exterior boundaries, levied and collected for its uses and purposes and devoted to its uses and purposes, can be recovered by a district within whose territory the lands actually lie, where no levy has been made or taxes collected for its uses and purposes, and where both districts obtained exactly the amount of moneys for which their budget called, and neither district obtained or had the use of money intended for the other, [emphasis added]

Fall River then noted that the California statute [as our own § 164.011] required the board of a school district to submit an annual estimate of the money needed to fund the school budget for the year and that the board of supervisors levy a tax on the property within the district to raise the amount of the estimate, and made response [l.c. 1092]:

[W]e may state that the complaint fails to show that the plaintiff suffered any deficit in its school funds, or that the defendant obtained any surplus in its school funds by reason of the levy and collection of taxes upon the properties mentioned in the complaint. The contention [seems] to be based upon the theory that each high school district has an inherent right to all moneys collected by way of taxation upon lands lying within the exterior boundaries of its district, whether or not the levy and collection of such moneys was intended for, or had for its uses and purposes and whether it did or did not receive all the money set forth as necessary in its estimate, and irrespective of whether there was or was not a deficit in its funds, and whether there was or was not a surplus in the funds of the district for which the tax was levied and collected, [emphasis added]
So far as the complaint is concerned, each district in this action had and enjoyed all the money necessary for its uses and purposes, and no money was paid by mistake to the appellant, derived from taxes levied and collected for the uses and purposes of the plaintiff, as no such taxes were levied or collected.

Our supreme court in Pleasant View approved of the dissent in Shawnee Township and expressly rested on the Fall River rationale to deny the claim of the Pleasant View district for money had and received by the Springfield district from its levy on property erroneously assessed as sited in Springfield, but actually within the Pleasant View territory.

Salisbury contends nevertheless that the Pleasant View doctrine, however sound, does not govern the claim for money had and received against Westran. That is because in Pleasant View the complainant school district suffered no deficit, and the benefitted district acquired no surplus from the mistaken assessment. The argument cites an excerpt from Fall River reseripted in Pleasant View [l.c. 859]:

“[W]e may state that the complaint fails to show that the plaintiff suffered any deficit in its school funds, or that the defendant obtained any surplus in its school funds by reason of the levy and collection of taxes upon the properties mentioned....”

and then expressly adopted by Pleasant View as a premise of decision [l.c. 860]:

We are convinced that the reasoning set forth in the Beale and Fall River cases, supra, is basically sound and should be accepted as dispositive of this case.

Salisbury argues that contrary to the Pleasant View matrix of facts, Salisbury suffered a deficit of $48,167.77, and Wes-tran gained an unanticipated surplus of $173,991.84 from the erroneous assessment — and thus, [we assume] the unjust enrichment premise for the money had and received remedy was proven. The argument rests altogether on a sense accorded to deficit and surplus, both tendentious and unmeant.

The school district budget process is an inexact practice. That was the acknowl-edgement of both Superintendant of Schools McGuire of the Salisbury district and Superintendent of Schools Hall of the Westran district. That is because neither the revenues nor the expenditures can be predicted with certainty. The revenues derive from local county, state and federal sources. The local revenues are from the school district levy, and comprise the most significant component of anticipated income. The local revenues also include income from food services, activity fees, and other such miscellaneous sources. Other significant income derives from the short-term investment of tax receipts, but that fluctuates with the current interest rate.

The school district budget extends from July 1 to June 30. The estimated budget must be approved by the board of education before July 1 of the year, and the Estimate of Required Local Taxes [for the local revenue component of the budget] must be submitted — along with the rate of levy to be extended against the assessed property in the district — to the county clerk by July 15 of the year. The preponderant portion of the taxes, however, are paid to the schools during the early months of the calendar year, so that from July through December [the first half of the budget year, but the last half of the tax revenue income year], a district has less ready money to spend than may be currently owed. That compounds the uncertainty of the budget process. A typical technique a school board employs to allay that possibility of imbalance [the testimony agrees] is to “plan a surplus” — an “end balance to get through from July 1st to the end of the year.” Another typical technique is to “plan a deficit” — that is, to forgo an increased levy [and the necessity to submit that proposition to the electorate for approval] and simply to invade the garnered “surplus.” Thus, by the time the school budget for fiscal 1981-1982 was formulated, Salisbury had an accumulated carryover “surplus” of $464,653.99 and Westran, a carryover of $411,861.00.

Salisbury adopted a budget for fiscal 1981-1982 which estimated revenues from all sources at $1,513,300.00 and estimated expenditures for that period of $1,627,-498.00. Thus, the budget anticipated a shortage of $114,198.00. The revenues actually received by Salisbury from all sources for that school year, however, were $1,634,867.67, while the actual expenditures were $1,683,035.57. Thus, Salisbury received $121,567.00 more than the budget estimated was necessary for that school year. Thus, also, the actual shortage incurred was $48,167.77, or $66,030.23 less than anticipated by the budget.

Westran adopted a budget for fiscal 1981-1982 which estimated revenues from all sources at $2,165,215.00 and estimated expenditures for that period at $2,132,-908.00. Thus, the budget anticipated an excess of $32,307.00. The revenues actually received by Westran from all sources for that school year, however, were $2,255,-121.64, while the actual expenditures were $2,048,822.80. Thus, also, the actual excess incurred was $206,298.48, or $173,-991.84 more than anticipated by the budget.

Salisbury argues that this evidence — that Salisbury suffered a deficit in its school funds and that Westran acquired a surplus — differentiates its circumstance from that of the school district suitor in Pleasant View — and so sustains a recovery for money had and received.

The action for money had and received is a remedy at law governed by equitable principles. Newco Land Co. v. Martin, 358 Mo. 99, 213 S.W.2d 504, 510[4] (1948). The action may be maintained whenever one has money in hand which belongs to another, and which, in equity and good conscience the other should pay over. Brandkamp v. Chapin, 473 S.W.2d 786, 788[1, 2] (Mo.App.1971). The remedy is based on a promise implied by law, or on the principle of equity that a person unjustly enriched at the expense of another must make restitution. Eichenberg v. Magidson’s Estate, 170 S.W.2d 105, 108[1-6] (Mo. App.1943); 58 C.J.S. Money Received § 1 (1948). An action strictly at law does not avail Salisbury to regain the tax money paid to Westran for the simple reason that a school district may claim as of right only taxes collected from a levy the district itself imposed. That public policy of the school tax scheme was discerned early in State ex rel. School District v. Beale, 90 Mo.App. 341 (1901), and was the confirmed in Pleasant View, l.c. 859. The principle of Beale that [l.c. 344]: “The only taxes which could legally be paid to [a school] district, would be such as that district estimated or levied”—was reaffirmed in Pleasant View [l.c. 858 et seq.] as the public policy of then §§ 165.077 and 165.083 [now §§ 164.011 and 164.041]. The only persons with a direct interest in the revenues paid because of the erroneous assessment — and so with even colorable status to sue at law — are the taxpayers of the affected school district, and they are not before the court. Pleasant View, supra, l.c. 860; Fall River, supra, l.c. 1095; Fort Wayne Community Schools v. State ex rel. New Haven Public Schools, 249 Ind. 562, 233 N.E.2d 636, 641[6] (1968). Thus, to state a claim at all, Salisbury must demonstrate some equity, some claim to restitution, which supervenes the Beale and Pleasant View stricture and the public policy it protects. Restatement of Restitution § 62, Transferee Protected by Public Policy (1937) [Missouri Annotations, cases cited pp. 72 et seq. (1944)].

An action for money had and received, as we note, is a species of restitution. It postulates that the defendant was unjustly enriched at the expense of the suitor, and so in equity should be made to pay over. In the context of a claim for money had and received to redress the unjust enrichment of one school district at the expense of the other, Pleasant View [l.c. 859] articulates that the proof must demonstrate, at the very least, that the suitor district received less than its estimate for the needs of the year — and in that sense suffered a deficit. The proof was quite to the contrary. Salisbury budgeted a shortage of $114,198.00, but received $121,-567.00 more than the budget estimated was needed to meet the anticipated expenditures. Thus, by any concept of fiscal management, Salisbury suffered neither shortage nor “deficit” for year 1981-1982. Salisbury claims, nevertheless, a “deficit” for that year of $48,167.77. That conclusion is premised on the difference between the revenues actually received and the expenditures incurred for 1981-1982. Thus, although the budget estimated $1,627,-498.00 as the expenditure needed for the year, the school district actually spent $1,683,035.57 for the year—or $55,537.57 more than the estimate—[from funds, we surmise, earned from the unexpected boon of a 20.5% interest return on invested tax revenues]. A school budget, however, comes as an estimate, and as an estimate determines the money needed from taxes for that year, and as an estimate is extended as a levy against the taxable property in the district. §§ 164.011 and 164.041.) The principle of Pleasant View —that an action by one school district for money had and received by another must show, at the least, that the suitor district received less than the budget estimate as a result of the assessment error — merely implements that public policy. Pleasant View, supra, l.c. 854; Beale, supra, l.c. 344. Thus, the sums a school district actually spends during the fiscal year is irrelevant on the question of a budget in deficit which, by implicit scheme of statute, is constructed in terms of estimate. The evidence proves no unjust enrichment of Westran at the expense of Salisbury. That Westran also enjoyed a surplus does not prove an equity for restitution under Pleasant View, because that carryover was not at the expense of Salisbury — which itself enjoyed an absolute surplus of revenues above estimated expenditures for that year — so that at the end of budget year 1981 — 1982 Salisbury still owned an accumulated surplus of $416,-486.22 from prior budgets.

Salisbury argues, nevertheless, that had it known the dragline was subject to taxation, Salisbury would have used that revenue to support the 1981-1982 school year and so, we assume, not have submitted an estimated shortage. The Salisbury argument merely reverts to the notion that a school district stands as a proprietor, rather than as an agent of the legislature, as to the tax revenues from that territory. Our public policy repudiates that concept, as Pleasant View expressly and Beale implicitly decide. The shortage estimated for the Salisbury 1981-1982 budget, and then extended as a levy on the tax books, was [in the words of Salisbury School Board President Pressley] a “planned deficit.” It was prompted, among other considerations, by the political decision to avoid submission of an increased levy to the electorate. In that sense the “deficit” was a contrivance of choice. It was a customary practice, moreover, to “plan a deficit” as well as to “plan a surplus,” as prudent management dictated. That was the concurrence of all the administrators. There may be less reason to suppose that with the additional revenue from the dragline assured, Salisbury would have estimated a budget in imbalance, but from past practice, the contrary was not forgone. The argument is, in any event, irrelevant simply because on any terms Salisbury received at least all the budget estimated was necessary for the 1981-1982 school year, and no deficit, and hence no cause of action for money had and received was proven.

Salisbury argues next that its claim rests on facts distinguishable from those in Pleasant View because that petition was for recovery of taxes paid in years past, whereas in the Salisbury claim, the school year was still in progress when its district superintendent McGuire discovered the location error of the dragline. Salisbury argues also that at the time McGuire notified the county officials of the mistake, the tax money from the Westran levy on that property, although already collected was not yet disbursed. Salisbury argues further that the money was still not disbursed when its petition for prohibition, injunction and declaratory judgment against the county officials was filed. Salisbury concludes that these circumstances present a different issue from that decided in Pleasant View because there the funds were years since distributed and spent, whereas at the time Salisbury brought suit, the funds remained intact with the county treasurer. Salisbury suggests that we apply the solution adopted in Mabelvale Special School District v. Halstead Special School District, 276 S.W. 684 (Ark.1925) to determine that, as to funds not yet distributed but still in dispute, an action at law lies by a school district to recover money mistakenly assessed and paid to the other.

In that case the Supreme Court of Arkansas was confronted with an action at law by one school district to recover taxes paid to another on lands each claimed was encompassed within its territory. The court concluded [l.c. 585] that as to taxes which have been “regularly, though erroneously, distributed to [a] school district and consumed in educational purposes,” no action lies, but “as to taxes in the hands of the treasurer at the time [the] suit was commenced,” an action lies.

That very question, however, was the issue presented to the trial court by the counts for prohibition, injunction and declaratory judgment, adjudicated against the Salisbury contention and allowed to lapse. The prohibition and injunction counts were not appealed, and so are not before us. The county treasurer and other officials are not before us and, indeed, the tax money has already been distributed to Westran. The only claim for review is the count originally for declaratory judgment but amended into a claim for money had and received.

There is another reason the Arkansas solution is not an apt remedy. A school district has no status to sue at law to recover money from another school district for taxes received under the circumstances described in Mabelvale. If such an action lies at all, it belongs to those directly affected by the fiscal error — the taxpayers of the affected district. A school district is not a trustee for the taxpayers; they stand in their own right. Pleasant View, supra, l.c. 860; Fall River, supra, l.c. 1094. Those taxpayers are not before the court.

Salisbury next cavils at some of the terminology used by the trial judge in the findings prefatory to judgment. We sustain the judgment because it is right. Our discussion suffices as a full review of the decision of the court and of the issues preserved and presented for appeal. The decisions from other jurisdictions Salisbury cites on this and other points rest on rationales contradictory or indifferent to the principles pronounced by our supreme court in Pleasant View and of this court in Beale, and so do not bear as precedents.

The judgment is affirmed.

All concur.

      . The dragline, a mobile and massive coal-mining shovel, was not sited in either the Salisbury or Westran school district the year before, and for that reason Salisbury did not rely on that property for tax revenue in the preparation of the 1981-1982 budget.

      . The cases on this infrequently-litigated issue, pro and contra, are collected in the early annotation cited by our supreme court in Pleasant View [l.c. 855] in 105 A.L.R. 1273, School Funds—Misapportionment—Correction, pp. 276 et seq. (1936). The most recent decisions on the issue, School District of Gering v. Stannard, 193 Neb. 624, 228 N.W.2d 600 (1975) and Fort Wayne Community Schools v. State, 249 Ind. 562, 233 N.E.2d 636 (1968) follow the Pleasant View rationale. Those decisions which come to allow a school district to recover from another school district for property erroneously assessed and taxes collected on that property adopt the private proprietorship analogy [Shawnee Township majority], or a theory of trusteeship [Independent School District v. Common School District, 56 Idaho 426, 55 P.2d 144 (1936) ], or no theory at all [Independent School District v. School Township of Washington, 162 Iowa 42, 143 N.W. 837 (1913) ].

      . We add our own parenthesis: The Pleasant View adoption of the Fall River exposition introduces no new principle into our law, but merely fulfills the augury of this court in State ex rel. School District v. Beale, 90 Mo.App. 341 (1901) [also cited in Fall River and in Pleasant View], Beale was a mandamus by one school district to compel the county clerk to extend its levy over territory in dispute with another school district — and if the tax books had already been delivered to the collector, then that the clerk certify to the collector that the taxes collected were due to the relator district rather than the district which had imposed the levy. [The courthouse had burned, and the record of the territory boundaries was lost.] The evidence was that the clerk had already extended the tax levied by the respondent school district according to its budget estimate. Beale determined that the relator district had no legal right to taxes levied by another district — even though the situs of the property taxed was mistaken [l.c. 344]: "The only taxes which could be legally paid to [a school] district would be such as that district has estimated or levied." [emphasis added]

      . The local taxes — those collected from the levy of the school district as extended by the county clerk over the property assessed for school tax purposes by the assessor — are paid on about January 20 of the year. For that reason, these tax funds were still undistributed and in the hand of the collector when the assessment error was discovered by Salisbury and then reported to the county officials.