author: KAROHL, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Tommy Lee CHATMAN, Defendant-Appellant.
    No. 48124.
    Missouri Court of Appeals, Eastern District, Division Six.
    Oct. 23, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 5, 1984.
    Application to Transfer Denied Jan. 15, 1985.

      Henry Paul Fox, Jr., Asst. Public Defender, Clayton, for defendant-appellant.
    John Ashcroft, Atty. Gen., John Munson Morris, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   KAROHL, Judge.

Defendant appeals conviction on charge of murder first degree, § 565.003 RSMo 1978. He was charged as a prior offender and sentenced to a term of life imprisonment.

For purposes of this appeal we consider the basic facts as true. The crime was committed by Ingram, Rhodes and defendant Chatman on December 1, 1980. Ingram told the authorities that the three men planned to rob Frazier Pickens and that Rhodes shot and killed Pickens before Ingram arrived. They then completed the robbery and burned the body in an automobile. After Ingram’s statement the police arrested defendant on April 7, 1983.

Defendant here contends that his taped confession was erroneously admitted into evidence because it was obtained as part of a deal with the state which provided that in exchange for his statement he would only be prosecuted for the robbery and not for the murder. He also seeks dismissal of the murder charge because under the cooperation agreement he was to be prosecuted only for robbery.

On the day of arrest the defendant signed a Miranda waiver and spoke with Detective Reinhardt but he refused to make any incriminating statements. Confronted with the substance of Ingram’s pri- or statement defendant asked Reinhardt what type of consideration he would receive for giving a statement. The prosecutor authorized Reinhardt to offer a deal to defendant Chatman in order that the trigger man, believed to be Ingram, might be successfully prosecuted and convicted. Detective Reinhardt interpreted the proposed agreement as follows: In exchange for a statement defendant would be prosecuted for robbery first degree but not for capital murder. The conditions were that Chat-man “had to be completely truthful and that he had to cooperate with the prosecutor’s office in the prosecution of any other suspects involved in the death of Frazier Pickens.” Before the agreement was made Reinhardt told defendant that the purpose of the deal requiring his cooperation was the prosecution of Ingram and may involve depositions and testimony in court. Defendant agreed and gave a statement. He then suggested that if he was permitted to talk to Rhodes and Rhodes was given a similar agreement a statement from Rhodes might develop. That in fact was permitted, however, unknown to defendant, the meeting with Rhodes was in a room wired with listening devices and under police scrutiny. Rhodes was offered the same agreement and gave a statement on the same day.

The next day, August 8, 1983, the prosecutor instructed Reinhardt to subject defendant and Rhodes to a polygraph test. The state contends it was entitled to the test as the agreement required full cooperation. The parties do not dispute that a polygraph was not specifically discussed when the agreement was made. Detective Reinhardt first mentioned it the following day. There was no evidence of what was to be asked in the polygraph test.

When defendant refused the polygraph the robbery charge was withdrawn and a murder charge was filed. Four months later defendant’s motion to suppress the statement was heard and subsequently overruled. Defendant responded by filing a motion to dismiss the murder charge or to enforce the agreement and then, through counsel, filed a memorandum agreeing to a polygraph. The new offer to take a polygraph was expressly not an abandonment of defendant’s position that the statement should be suppressed or a waiver of the motion to dismiss or enforce the bargain. The motion to dismiss or enforce was heard by the trial judge on the day the trial was to begin and was overruled. The trial court ruled that the state had proved its compliance with the agreement and default by defendant maintaining that the polygraph was part and parcel of the agreement. While he expressly declined to find the polygraph test was a reasonable method of testing truthfulness, see State v. Biddle, 599 S.W.2d 182, 185 (Mo. banc 1980), he nonetheless found it to be a reasonable request to effectively prosecute Ingram. The court made no finding on the issue raised by the motion to dismiss or enforce, nor did it find that defendant’s statement was legally voluntary.

Defendant’s statement could be used in the trial on the murder charge only if he voluntarily waived his constitutional right against self-incrimination. Our Supreme Court held in State v. Hoopes, 534 S.W.2d 26 (Mo. banc 1976) that a confession is not admissible if given to obtain a particular agreed upon result and that result is aborted. Id. at 37. The court there said:

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

Id. at 35. (our emphasis).

The accused in a state criminal proceeding has the fundamental Fifth Amendment right not to be compelled by the state to incriminate himself. Malloy v. Hogan, 378 U.S. 1, 3, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). There is a presumption against a waiver of a fundamental constitutional right. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). When the defendant complains that statements were made involuntarily, the state has the burden of proving the volun-tariness of the confession. State v. Hughes, 596 S.W.2d 723, 726 (Mo. banc 1980). Confessions induced by influence of hope of leniency or hope of mitigation of punishment for crime charged, or of “worldly advantage” are not voluntary and are inadmissible in evidence. State v. Hunter, 456 S.W.2d 314, 316 (Mo.1970).

The state’s evidence, and the reasonable inferences flowing from it, clearly supported a finding that the state intended a polygraph examination to be a part of cooperation. However, this intention was not specifically mentioned during the negotiations. Detective Reinhardt testified that there was no question in his mind that the test was “included in the term full cooperation.” Other relevant facts are also clear. Defendant made the agreement while handcuffed to a chair during interrogation; the polygraph was not mentioned; the request for the polygraph came after the confessional statement and was in general terms only. The extent of defendant’s intellect is unknown. Reinhardt conceded he had “no way of knowing for sure if he [defendant] understood or not, [the state’s interpretation of the terms of the agreement] other than based on your opinion here today.”

We find that the state has failed to carry its burden of proving a voluntary and knowing waiver of defendant’s constitutional right against self-incrimination. It offered no evidence that defendant knew or had reason to know at the time he made his statement that a polygraph test was included in the cooperation term of the agreement. What may have been routine to the state and a reasonable expectation on the part of the prosecutor and the police officer has not been shown to be of like significance to defendant. The state has neither carried its burden of proof to show volun-tariness nor overcome the presumption against a knowing waiver.

The trial court assumed the agreement was as understood by the state and found defendant in default. Since the defendant defaulted the court held the state was not bound to the restriction on the use of the statement only in a robbery charge. However, the court did not make a finding or ruling on the issue of whether the statement was legally voluntary. As there was no clear and knowing waiver there was only an involuntary waiver and it was error to admit the statement which had the force of a confession. It is undisputed that without defendant’s interpretation of the agreement, which promised leniency, no statement would have been made. “When statements are obtained from an accused upon promises of leniency in return for a plea of guilty and the plea of guilty is aborted, the admissions obtained pursuant to the agreement” may not be used. State v. Hoopes, 534 S.W.2d at 37.

However, defendant is not entitled to a dismissal of the murder charge on the basis of the agreement. The defendant is entitled to a new trial on whichever charge the state wishes to prosecute. If the state chooses robbery it may use the statement because that was the defendant’s reasonable expectation in giving the statement, which constitutes a waiver of the privilege against self-incrimination. If it chooses murder the statement and whatever may have flowed from it may not be used as that was not agreed and the use of such evidence would be in violation of defendant’s right against self-incrimination.

Reverse and remand.

REINHARD, C.J., and CRIST, J., concur.

      . There is no information in the record on the prosecution of Ingram, if there was one, or how the refusal may have hindered the prosecution. In fact, the state does not contend that defendant’s refusal to take the polygraph hindered the prosecution of Ingram. In view of the fact that the result of a polygraph has not been approved as evidence it is unclear that the refusal is a breach of the agreement even as it was understood by the state. We do not reach this issue.

      . In State v. Hoopes, 534 S.W.2d 26, 37 (Mo. banc 1976) our Supreme Court noted the problem with use of these confessions. When the agreement has failed, the statements must be ignored and not brought up in trial. "To do otherwise would permit the prosecutor to make an agreement; obtain statements helpful to the prosecution pursuant to that agreement; break the agreement and yet have the full benefit of the bargain ...” Id. at 37.


source: Caselaw Access Project

author: CRIST, Judge.

license: Public Domain

text:
    Robert F. WEAST, Petitioner/Cross-Appellant, v. Joann Louise WEAST, Respondent/Appellant, and Ronald E. Forquer and Carl D. Weast, Third-Party Respondents.
    No. 48226.
    Missouri Court of Appeals, Eastern District, Division Three.
    Oct. 23, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 5, 1984.
    Application to Transfer Denied Feb. 26, 1985.

      Mary Ann Weems, Clayton, for respondent/appellant.
    Gary H. Lange, Bartley, Goffstein, Bólla-te & Lange, St. Louis, for petitioner/cross-appellant.
   CRIST, Judge.

This is a consolidated appeal by husband and wife from the circuit court’s order entered, after remand from this Court, redistributing marital property, setting aside separate property and awarding attorney’s fees in a marriage dissolution action. We modify and affirm.

A decree of dissolution of marriage was entered on April 22, 1982. Husband appealed. This court entered an order on July 12, 1983 reversing and remanding the decree for redistribution of marital property. The case was returned to Division No. 4 of the Circuit Court of St. Louis County. The original trial judge had retired. The new circuit judge of Division 4 did not retry the case or take additional evidence. On November 9, 1983, the court entered an Amended Decree of Dissolution redistributing the marital property and an Order for attorney’s fees as previously entered in the original action. On January 3, 1984, the court overruled husband’s motion to amend the judgment and wife’s motion for new trial or to amend. Husband and wife individually appeal to this court once again.

The parties were married in 1957, had no children and dissolved their marriage in 1982. At the time of the dissolution, both parties were self supporting, and no maintenance was granted. Both parties acknowledged having an extramarital relationship. The trial court made an ostensibly disproportional division of marital property in favor of husband, awarding wife $73,000 in separate property and $109,155 in marital property as contrasted with husband’s receiving $231,000 in marital property. Husband appealed the original judgment. It was reversed as to division of property and remanded. Weast v. Weast, 655 S.W.2d 752 (Mo.App.1983).

On remand, the new trial judge, without taking additional evidence, used a percentage formula to redistribute the marital property. The court determined the original decree awarded wife 44 percent of the total property (separate property $73,-000 and marital property $109,155) and awarded husband 56 percent of the total ($231,000 in marital property). The court applied this 44-56 percent combined separate and marital property as a realignment formula which supposedly was mandated by Weast v. Weast, supra. This formula was improperly applied in that wife’s separate property was her property and should not have been included in the same category as husband’s marital property and wife’s marital property. Section 452.330, RSMo 1978 requires the trial court to set aside to each spouse his separate property. The marital property is then divided after consideration of all relevant factors. In Re Marriage of MacBeth, 622 S.W.2d 720, 723 (Mo.App.1981).

The trial court may consider the economic circumstances of each spouse at the time the property is divided. Section 452.330.1(3), RSMo 1978. However, the circuit judge has no jurisdiction to enter a decree apportioning as marital, property which is separately owned by either party. In Re Marriage of Schulz, 583 S.W.2d 735, 742 (Mo.App.1979). On remand the trial judge improperly combined separate with marital property to create the 44-56 percent formula. We do not believe the second trial judge has made an equitable division of the marital property.

Husband contends a $2,047.00 loan to his brother and the $750.00 proceeds of a lawsuit for alienation of affection should not have been declared marital property. Husband also questions the trial court’s reinstating the order for husband to pay wife’s attorney’s fees. In dividing the loan proceeds, the trial court was following its mandate. Weast v. Weast, 655 S.W.2d 752, 757 (Mo.App.1983). Awarding attorney’s fees is within the trial court’s informed discretion. Id. We need not address the lawsuit proceeds as de minimis in nature. Whether certain additional items awarded husband were separate or marital property is not of such consequence to change the decree.

Wife objects to the second trial judge’s use of percentages from the original decree. Both husband and wife find error in the court’s redistributing the proceeds of a farm in Macoupin County, Illinois.

The original decree ordered the Illinois farm sold and the net proceeds divided equally between husband and wife. The amended decree awarded wife a fixed share of $17,600 of the net proceeds of the sale of the farm and approximately 83 percent of the net value to husband. This created a shift of $33,900 from wife to husband from the original decree. To reach these results the court applied its erroneous 44-56 percent formula.

We realize a trial court is better equipped to ascertain proper division of marital property and are reluctant to step into this litigation. Yet, this case has had the benefit of two appeals. The original transcript is on file with this court. And, justice requires there be an end to dissolution litigation.

Accordingly, the amended decree of dissolution of marriage is hereby modified and amended to provide husband and wife shall each receive 50 percent of the net proceeds of the sale of the farm in accordance with the original decree. Such a ruling is within our purview. T. v. T., 447 S.W.2d 795, 796 (Mo.App.1969).

Judgment affirmed as modified.

DOWD, P.J., and CRANDALL, J., concur.


author: CLEMENS, Senior Judge.

text:
    STATE of Missouri, Respondent, v. Robert BURROUGHS, Appellant.
    No. 48372.
    Missouri Court of Appeals, Eastern District, Division Six.
    Oct. 23, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 5, 1984.

      Laurence G. Schmidt, Hillsboro, for appellant.
    John Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.
   CLEMENS, Senior Judge.

A jury found defendant Robert Burroughs guilty of both burglary and possession of a burglary tool. The trial court sentenced him as a persistent offender to consecutive ten and five year prison terms. Defendant offered no evidence.

Defendant first challenges the burglary sentence claiming he was not adequately identified as the burglar. In this we view evidence most favorably to the state. State v. Stewart, 636 S.W.2d 345[1] (Mo.App.1982). Every element of burglary may be shown circumstantially, State v. Jerelds, 637 S.W.2d 80[1-3] (Mo.App.1982), and it suffices to show the accused participated in the burglary. State v. Means, 628 S.W.2d 426[1 — 3] (Mo.App.1982). So considered the evidence showed: The burglary was at a truck repair yard. There, a locked building was inside a high chain link fence topped by three barbed wire strands. A remote silent burglar alarm sounded at 3:51 A.M. and police were at the scene within minutes. There they saw a man running away; their hurried description fit the defendant whom they arrested half a mile away fleeing on foot. There were signs inner doors had been forced open.

The state showed other circumstantial evidence: When arrested defendant wore neither coat nor shoes, and his pant legs were muddy; his shirt was torn by barbed wire which topped the fence over which he had escaped. A cigarette lighter was found nearby and when arrested defendant had cigarettes but no lighter. Car keys were found on the ground nearby, where a 1969 Plymouth had been abandoned; it was owned by Mary Burroughs whose address was the same as that given by defendant when posting bond.

We hold, consistent with the above cited cases, that the state’s evidence sufficed to submit the burglary charge.

We now move to defendant’s challenge to the verdict finding him guilty of possessing a burglary tool. He contends the evidence showed neither that he had possessed the tool nor that it was one commonly used for forcible entry. The state counters that a tire tool had been used to gain entry to the building, that it was an object often used for forcible entry, and that it was found along defendant’s escape route.

Here defense counsel argues the brass metal residue found on the tire tool and on the pry marks on doors were not enough to show the tire tool was used to facilitate entry. The state’s evidence was that it could have been so used. Defendant’s reliance on State v. Hansen, 545 S.W.2d 713 (Mo.App.1977) is misplaced; there the evidence negated any attempt to burglarize the premises. Not so here.

The state first relies on the burglary case of State v. Mick, 506 S.W.2d 35[9] (Mo.App.1974) where the court held the defendant’s possession of a tire iron was properly shown even with no showing it was used in the burglary. The court ruled that since the challenged evidence was relevant to the basic issue of burglary it was admissible. More so here where the chai-lenged tire tool could have been used to facilitate the burglarious entry.

More pertinent here is State v. Edmonds, 462 S.W.2d 782[4] (Mo.Sup.1971). The court noted that Section 560.115 RSMo. on felonious possession of burglar tools covered any tool adapted or commonly used for breaking into a building. The court declared thereunder it is not necessary to prove “that the tools or implements were originally made or intended for an unlawful use. If they are suitable for that purpose, so that they can be used to break and enter burglariously, it is wholly immaterial that they were also designed and adapted for honest and lawful uses.”

So, both offenses of burglary and possession of burglary tools were proven and we affirm both judgments.

REINHARD, P.J., and CRIST, JJ., concur.


author: SMITH, Presiding Judge.

text:
    STATE of Missouri, ex rel., John Fox ARNOLD, Al Bauer, Katherine Rea, and Ann R. Ruwitch, in their capacity as the Board of Election Commissioners of St. Louis County, Missouri, Relators, v. The Honorable Robert G.J. HOESTER, Circuit Judge of St. Louis County, Missouri.
    No. 48971.
    Missouri Court of Appeals, Eastern District, Division Four.
    Oct. 23, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 5, 1984.
    Application to Transfer Denied Jan. 15, 1985.
    Kenneth M. Romines, Clayton, for relator.
    Robert Herman, St. Louis, for respondent.
   SMITH, Presiding Judge.

This case is before us following the issuance of our preliminary writ of prohibition precluding respondent from proceeding further following his order for a recount in an election contest arising from an election on April 3, 1984. The underlying suit was brought by three candidates for the office of Trustee in the Village of Breckenridge Hills. At issue were four positions on the Board of Trustees. The three contestants received fewer votes than four other candidates. We make our preliminary writ absolute.

Several issues have been raised before us. We need deal with only one. The only parties-defendant in the underlying suit are the Board of Election Commissioners of St. Louis County and the Village of Breckenridge Hills. The four candidates receiving the highest number of votes were neither named as parties nor served. The election contest statutes, Sections 115.526 through 115.601 RSMo.1978 and Cum.Supp.1982, are sui generis and the requirements of the statute must be rigidly adhered to. State ex rel. Bushmeyer v. Cahill, 575 S.W.2d 229 (Mo.App.1978) [2-4]; State ex rel. Craig v. Grimm, 542 S.W.2d 335 (Mo.App.1976) [1].

Sec. 115.579 RSMo 1978 provides the clerk of the circuit court, “shall issue a summons upon the petition to the contestee ...” It further states that “[i]f the contes-tee cannot be found within two days, the summons shall be served by leaving the summons and a copy of the petition at the residence address shown on the contestee’s declaration of candidacy ...”

Respondent contends, however, that the “contestee” is the Board of Election Commissioners and relies upon Sec. 115.553.2 RSMo 1978. That reliance is misplaced. Subparagraph 2 of 115.553 deals with contests of “questions” not contests of candidates. In that posture the election authority is the only logical “contestee” available for service. Engrafting the definition of contestee found in that subparagraph on the provisions of Sec. 115.579 would lead to absurd results. In the first place, an election authority does not have a “declaration of candidacy” showing its residence address as it is not a candidate. Secondly, subparagraph 2 of Sec. 115.579 provides for sending a copy of the petition to the “election authority responsible for issuing a statement announcing the results of the contested election.” It is beyond belief that both the service provisions of subpara-graph 1 and the mail provisions of subpara-graph 2 are intended to provide notice to the same entity and to provide no notice to the person whose election is being challenged. Thirdly, the entire election contest statute (Sec. 115.527-115.601) evidences the clear legislative intent to provide an adversary proceeding in which the candidate receiving the most votes can defend his election. See Secs. 115.526, 115.533, 115.539, 115.543, 115.551, 115.553, 115.557, 115.559, 115,561, 115.567, 115.569, 115.579, 115.581, 115.583, 115.587, 115.599, 115.601. Finally, the language of Sec. 115.595 specifically states, “If the contest is decided against the contestee, the court or legislative body trying the contest shall make an order for him to give up the office to the person determined to be entitled to the office ...” (Emphasis supplied). All of this makes abundantly clear that when the word “con-testee” is used in the election contest statutes it refers to the successful candidate or candidates except in the case of a “question” where the term is specifically otherwise defined.

The requirements of Sec. 115.579 were not here complied with and the trial court lacked jurisdiction to proceed with the election contest or the recount. State ex rel. Craig v. Grimm, supra, [4-6].

Preliminary writ of prohibition is made absolute.

STEWART and SATZ, JJ„ concur.


text:
    Betty FERKEL, Plaintiff-Respondent, v. BI-STATE TRANSIT DEVELOPMENT AGENCY, Defendant-Appellant.
    No. 47832.
    Missouri Court of Appeals, Eastern District, Division Four.
    Oct. 30, 1984.
    Rehearing Denied Dec. 5, 1984.
    Application to Transfer Denied Jan. 15, 1985.

      David Lupo, St. Louis, for plaintiff-respondent.
    Donald Bird, St. Louis, for defendant-appellant.
   SMITH, Presiding Judge.

Defendant, Bi-State Transit Development Agency, appeals from a judgment of $5000 against it based upon a jury verdict. We reverse.

Plaintiff sustained injuries when the bus upon which she was riding went out of control after the driver collapsed from a fatal heart attack. The evidence established that the driver had no prior history of heart trouble. He had taken annual physical examinations required by the U.S. Department of Transportation which included an electrocardiogram and chest X-rays. These examinations showed no physical impairments or heart problems. The particular physical problem which caused the attack and almost simultaneous death (narrowing of the left anterior descending artery) can be diagnosed only through utilization of a catheter into the heart muscle which diagnostic technique carries significant dangerous side effects including death. It is, therefore, utilized only with patients having a history of heart trouble. This physical condition is a common cause of sudden or instantaneous death without prior symptoms. Plaintiff’s only evidence of forewarning was that while stopped for a traffic light immediately prior to collapse the driver was sweating and mopped his brow and rested his head on the steering wheel. When the light changed he raised his head up and continued driving until he collapsed seconds later. The weather was hot and the bus air-conditioning was not working. The medical testimony was that sweating on a hot bus on a hot day was not a forewarning of an impending heart attack.

The cause was submitted to the jury on an instruction sounding in contract which premised recovery upon plaintiff’s failure to reach her destination safely. It required no finding of negligence by defendant or its agent.

Plaintiff seeks to uphold the judgment upon the premise that defendant breached its implied contract to safely transport plaintiff to her destination. This theory allegedly is based upon Williams v. Illinois Central R. Co., 229 S.W.2d 1 (Mo.1950) which holds, “that a passenger injured through the negligence of a carrier may proceed either upon the contract alleging the careless or negligent acts of the defendant as a breach of the contract of transportation, or proceed in tort and make the carelessness and negligence of the carrier the ground of his right of recovery.” [1,2]. (Emphasis supplied) As that case points out, it is generally immaterial whether the cause is upon contract or tort. If in fact there are two distinct theories, the duty of the carrier is the same under either — it must exercise the highest degree of care to safely transport its passenger to his destination. It is not, however, an insurer of the safety of the passenger. It does not guarantee such safe transport. Bass v. Bi-State Development Agency, 661 S.W.2d 609 (Mo.App.1983) [2, 3]; Jackson v. Bi-State Transit System, 650 S.W.2d 228 (Mo.App.1977) [4, 5]. Plaintiff misconceives the duty of the carrier whether recovery is premised in contract or tort.

Fainting or momentary loss of consciousness while driving is a complete defense to an action based on negligence if such loss of consciousness is not foreseeable. Reece v. Reed, 326 S.W.2d 67 (Mo, 1959) [4]. So is permanent loss of consciousness. The only evidence in this record is that the driver was in apparent good health and had no forewarning of his heart attack. He was required by defendant to take annual physical examinations, and had successfully passed such examinations. The attack was not foreseeable and plaintiff failed to establish any breach of duty by defendant. She failed to make a submissible case.

Judgment reversed.

SNYDER and SATZ, JJ., concur.


author: GARY M. GAERTNER, Special Judge.

text:
    In re Interest of George A. MANOR, Appellant, v. Janet D. MANOR, Respondent.
    No. 46234.
    Missouri Court of Appeals, Eastern District, Division Five.
    Oct. 30, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 5, 1984.
    Application to Transfer Denied Jan. 15, 1985.

      Lamar E. Ottsen, Jr., Moline, Tegethoff, Ottsen, Mauze & Leggat, Clayton, for appellant.
    Ray A. Gerritzen, Gerritzen & Gerritzen, St. Louis, for respondent.
   GARY M. GAERTNER, Special Judge.

This is an appeal from a dissolution of marriage, wherein the primary contested issues concern the proper distribution of the marital estate. George A. Manor and Janet D. Manor were married on June 25, 1960. They lived together as man and wife until September 9, 1978, when Janet moved out of the Manor residence. She petitioned for divorce on September 22, 1978. The decree of dissolution was granted on July 29, 1982.

Throughout the marriage appellant and respondent acquired real and personal property, the majority of which has been harmoniously distributed. However, the evaluation, ownership and disposition of certain items has been fiercely contested. Regarding these particulars, appellant raises eight points on appeal.

I. The trial court did not err in concluding that the appellant was the sole proprietor of Manor Chemical Company, Inc. and Manor Products Corporation, because there was substantial evidence to support this conclusion. There was substantial conflicting evidence regarding the stock distribution, and the actual operation of the two corporations. The trial Judge is in the best position to weigh the credibility of the witnesses. In Re the Marriage of Strelow, 581 S.W.2d 426 (Mo.App.1979). This first point is ruled against the appellant.

II. Appellant’s second, third, fifth and sixth points contest the evaluation and distribution of various alleged corporate assets and previously sold property, and the overall breakdown and disposition of the marital property. Once again there is sufficient evidence to support the trial court’s Findings and Conclusions regarding these matters.

These points are ruled against the appellant.

III. Appellant’s seventh and eighth points contest the awarding of maintenance and attorney’s fees (and accountant’s fees) respectively.

Janet D. Manor’s actual income is extremely modest, and there was substantial evidence supporting the trial court’s award of maintenance. Likewise, § 452.355 RSMo 1978 provides for the awarding of attorney’s fees “after considering all relevant factors including financial resources of both parties.” Again, there was sufficient evidence supporting the award of attorney’s and accountant’s fees.

These two points are ruled against the appellant.

IY. In his fourth point, appellant attacks the trial court’s order against him to pay respondent $129,000.00. This point has merit.

The trial court found there was no separate property to be awarded. As to the marital property, the court found the parties’ “conduct throughout ... the marriage was such that it does not merit an inordinate focus in the distribution of the marital property.” According to the court’s evaluation and calculation, the values of the marital property it distributed to appellant and respondent were $354,285.00 and $336,-615.00 respectively, an approximate 51% to 49% division. $29,000.00 of the respondent’s share was an award of a “cash payment by [appellant to respondent as] balance of her share of marital property.” However, the court did not deduct this $129,000.00 from appellant’s share of the marital property.

This failure, appellant argues, caused the court to overvalue both the marital estate and appellant’s share of that estate. Although the decree purports to award him $354,285.00, the true value of his share, appellant reasons, is only $225,285.00 ($354,285.00—$129,000.00), because he must pay the cash sum out of his share. This is an unacceptable disproportionate distribution, appellant contends, because it is contrary to the court's explicit finding that the conduct of the parties did not justify a disproportionate distribution of marital property.

Appellant’s attack requires us to determine first whether there was evidence of assets to support this specific award of $129,000.00. If there were, appellant’s assertion that the marital estate was overvalued would, of course, be wrong. After a careful review of the evidence and exhibits, however, we find no substantial evidence to support a finding of such assets. Further, we find respondent’s attempts to explain the source of this $129,000.00 award unconvincing. The trial court therefore erred in including this item in respondent’s share of the marital property without a corresponding reduction of appellant’s share.

We consider then the effect of this error. The trial court’s finding that the conduct of the parties does not justify a disproportionate distribution of marital property does not require the court to decree an equal division of marital property. Oldfield v. Oldfield, 666 S.W.2d 17, 18 (Mo.App.1984); Walker v. Walker, 631 S.W.2d 68, 71 (Mo.App.1982). Rather, the requirement is for a just division, Arp v. Arp, 572 S.W.2d 232, 235 (Mo.App.1978), and what is just must be determined on a case by case basis. In re Marriage of Cornell, 550 S.W.2d 823, 827 (Mo.App.1977). Unequal division have been affirmed as just divisions. E.g., Oldfield v. Oldfield, supra at 18, 19 (68%—32% split); But see, In re Marriage of Cornell, 550 S.W.2d 823, 827 (Mo.App.1977).

As noted, however, based upon the trial court’s evaluation and calculations, the awards to appellant and respondent constituted a 51% to 49% division of the marital property. If the $129,000.00 award were deducted from the appellant’s award, the division would be a 40% award to appellant and a 60% award to the respondent. Arguably, this division could be justified by the fact that appellant’s share of the marital property includes three going businesses, and, therefore, his income would be substantially higher than respondent’s.

Were it clear from the record what result the trial court intended to reach, we could simply affirm or modify the decree to effectuate the court’s intent. Lynch v. Lynch, 665 S.W.2d 20, 24 (Mo.App.1983). Here, however, the court’s intention is unclear and, thus, what adjustment, if any, is necessary to the cash payment is likewise unclear. We therefore vacate that portion of the decree ordering appellant to pay respondent $129,000.00 and remand it to the trial court for further proceedings not inconsistent with this opinion. In all other respects, the decree is affirmed.

Four of respondent’s motions were submitted with the case. They are: (1) “Motion to Strike Appellant’s Oral Argument, Exhibits and the Court of Appeals Statement of Appellant’s Attorney ... which are Not a Part of the Record or are Contrary to the Record,” (2) “Motion to Dismiss Appeal as Moot,” (3) “Motion to Dismiss Appellant’s Appeal,” and (4) “Motion to Submit Additional Newly Discovered ... Evidence.” They are denied.

Therefore, this latter matter is returned to the trial court for further consideration and specific findings as to the proper balance payment to be decreed.

DOWD, P.J., and SATZ, J., concur.


author: GAERTNER, Judge.

text:
    Selma KOENIG, Plaintiff-Respondent, v. Joseph J. BABKA, M.D., Defendant-Appellant.
    No. 47508.
    Missouri Court of Appeals, Eastern District, Division One.
    Oct. 30, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 5, 1984.
    Application to Transfer Denied Jan. 15, 1985.

      Gail L. Fredrick, Springfield, for defendant-appellant.
    James F. Koester, St. Louis, for plaintiff-respondent.
   GAERTNER, Judge.

Plaintiffs sued defendants Joseph J. Bab-ka, M.D., Ronald A. Sapiente, M.D., and Incarnate Word Hospital seeking damages for injuries allegedly resulting from their negligence. At the conclusion of the evidence plaintiff dismissed her action against Dr. Sapiente and the hospital. The jury returned a verdict of $275,000 against Dr. Babka alone. Judgment was entered accordingly and he appeals. We affirm.

Defendant asserts three points of error: (1) failure to modify MAI 4.01 by substituting a descriptive phrase for “occurrence” thus allowing the jury to award damages for an occurrence for which defendant was not responsible; (2) admission into evidence of an unqualified portion of a hospital record; and, (3) excessiveness of the verdict.

In July 1978 plaintiff went to Dr. Babka. because of pain in her lower abdominal area. Dr. Babka diagnosed the problem as rectal cancer. He referred plaintiff to Dr. Sapiente, a radiation oncologist, for treatment to shrink the tumor prior to surgery. Plaintiff received radiation therapy from August 14, 1978 through September 15, 1978. Dr. Sapiente testified that he told defendant a waiting period of four to six weeks after radiation therapy was necessary before surgery and sent him a note advising surgery after four weeks. Defendant denied receiving this note and claimed Dr. Sapiente had agreed to a five week schedule, three weeks of radiation and two weeks delay before surgery. Defendant admitted this was his first experience with surgery following massive radiation. Plaintiff experienced urinary incontinence following the surgery. She was seen by Dr. Dwayne Bergmann who determined that her bladder had lost most of its elasticity. He operated on plaintiff on November 3, 1978 to reposition her urethra. After this surgery plaintiff had almost total incontinence. On January 5, 1979, Dr. Berg-mann performed an ileal conduit on plaintiff to divert her urine to an externally worn bag.

The thrust of plaintiff’s claim against Dr. Babka was that the urinary incontinence was caused by the inappropriate timing of the surgery too soon after radiation treatment. By way of deposition Dr. Richard C. Gardner, an orthopedic surgeon, testified that surgery should not be performed until four to six weeks following radiation therapy. He stated the area exposed to radiation is most sensitive two weeks after treatment and if surgery is performed at that time excessive bleeding results in damage. Dr. Gardner testified the damage to plaintiffs bladder and the blockage of the ureters was a direct result of the failure to wait the prescribed four to six week waiting period after the radiation. Plaintiff introduced portions of defendant’s deposition as admissions against interest in which Dr. Babka admitted that after he had been sued he checked medical literature and learned that four to six weeks is the recommended waiting period between massive radiation therapy and surgery.

Defendant’s first point asserts error in failing to modify the damage instruction, MAI 4.01, as required by the “Notes on Use” where the evidence discloses more than one occurrence which is claimed to have caused plaintiff’s injury. Defendant here argues the evidence disclosed two occurrences, radiation therapy and surgery, and there was evidence that either of these could have caused the bladder damage. Since defendant had no responsibility for the radiation therapy, he suggests that the instruction should have required the jury to find that plaintiff’s damages were a direct result of the “surgery” rather than the “occurrence” mentioned in the evidence.

Defendant relies on Rule 70.02 which condemns as error any failure to follow MAI including the Notes on Use. However, the rule also provides for judicial determination of the prejudicial effect of such error and reversal is not permitted in the absence of such prejudice. Hudson v. Carr, 668 S.W.2d 68, 71-72 (Mo. banc 1984). For several reasons we conclude that if there was error, it was not prejudicial.

First, the record discloses the case was tried with a clear and distinct line of demarcation between plaintiff’s theory that the damage was a direct result of the premature timing of the surgery and the defense that the damage was caused by the radiation therapy alone. Therefore, in the context of this record, the issue presented for resolution by the jury was an “either/or” question in which only one of two “occurrences” could have been the causative event. Such a clear-cut dichotomy was held in Yoos v. Jewish Hospital of St. Louis, 645 S.W.2d 177, 189 (Mo.App.1982) to render the failure to modify MAI 4.01 nonprejudicial. In Yoos this court noted the maxims that in determining the prejudicial effect of a failure to follow MAI directives all instructions are to be read together, as a whole, and as being given to and considered by jurors of reasonable intelligence. Id. at 189-190. By its very language MAI 4.01 submits the issue of damages only after the jurors have made their finding in favor of plaintiff under a verdict directing instruction. Thus, in this case the jury did not even consider the question of damages under Instruction 9 until a finding had been made under Instruction 7 that plaintiff’s damages were a direct result of defendant’s negligence in failing “to wait four to six weeks before performing abdominal perineal resection surgery following the completion of radiation therapy.” We find it inconceivable that reasonably intelligent jurors could be confused or misled in view of the evidence and other instructions.

Moreover, even if it be assumed that the evidence could be construed as showing the injury to have been caused by a combination of defendant's negligence in operating too soon and the negligence of Dr. Sapiente in administering excessive radiation, defendant would not have suffered any prejudice from the failure to modify MAI 4.01 as he would still be liable for the entire damage. Where two or more persons, although acting independently, are in combination the cause of a single injury to another, the injured person may recover for the entirety of the injury from any one or all of the tort-feasors whose acts have contributed thereto. This “indivisible injury rule” is well stated in Glick v. Ballentine Produce, Inc., 396 S.W.2d 609, 612 (Mo.1965):

The law recognizes that where ‘the concurrent or successive negligence of two persons, combined together, results in an injury to a third person, he may recover damages of either or both and neither can interpose the defense that the prior or concurrent negligence of the other contributed to the injury’. 1 Thompson On Negligence, § 75. Berryman v. Peoples Motor Bus Company of St. Louis, 228 Mo.App. 1032, 54 S.W.2d 747, Loc. Cit. 749. (additional citations omitted).

Under this rule, a defendant need not suffer any injustice from being held solely responsible for an entire injury resulting from a combination of wrongs. He may seek contribution from others who participated in causing the damage merely by impleading them and requesting an apportionment of relative fault under the doctrine of Missouri Pacific Railroad Company v. Whithead and Kales Company, 566 S.W.2d 466 (Mo. banc 1978). Cf State ex rel. Retherford v. Corcoran, 643 S.W.2d 844, 846 (Mo.App.1982). Defendant sought no such relief here. Indeed, despite the testimony of his expert witnesses that radiation was the cause of plaintiff’s bladder and ureter problems, Dr. Babka in his own testimony admitted plaintiff’s incontinence was a result of his surgery. Where evidence shows but a single indivisible injury which may be the result of a combination of tortious acts of a defendant and others, it is not reversible error to fail to modify the word “occurrence” in MAI 4.01. Because any one of the tort-feasors may be held liable for the entire result, a defendant cannot sustain his burden of establishing that prejudice resulted from the misdirection.

Finally, we note that defendant made no specific comment at the instruction conference regarding the failure to modify MAI 4.01. Assuming Rule 70.03, which dispenses with any necessity of making specific objections to instructions until the motion for new trial, retains some vitality after Fowler v. Park Corporation, 673 S.W.2d 749 (Mo. banc 1984), rather than applying that decision retrospectively, we observe the caveat of Hudson v. Carr, 668 S.W.2d 68 at 71-72 (Mo.1984), that such failure to object specifically may be considered in determining the prejudicial effect of a deviation from MAI. “This is especially so when the court gives a text instruction in express terms and the deviation consists in a failure to modify it. If a defect is not readily apparent to alert counsel preparing to argue the case, there is very little likelihood that the jury will be confused or mislead.” Id. at 72.

Next defendant charges trial error in the admission in evidence of a portion of the records of Incarnate Word Hospital. The part of the record objected to was a memorandum written by a Dr. Raghunath P. Reddi which related to the consideration by a “Tumor Board” of plaintiffs treatment. The memorandum relates plaintiff’s history of radiation therapy, that she “unfortunately” underwent surgery thirteen days later, and that she subsequently required a “total cystectomy and ileal conduit operation due to blockage of the ureters. This type of complication was contemplated due to the immediate surgery following the radiation therapy.”

Defendant attacks the admission of this memorandum contending it was not properly qualified under the Uniform Business Records As Evidence Act, § 490.680, RSMo.1978, that there was no foundation for the opinion evidence in that the sources of the doctor’s information were not developed and that the opinion was based upon hearsay rather than personal knowledge or observation.

As to the first point, defendant does not question the qualification of the entire hospital record. It was identified by the Assistant Director Of Medical Records as a record kept under her care, custody and control. She said the entries in the record were made at or about the time of the event, occurrence or treatment described and that it was an official record of the hospital. On cross-examination she conceded that she was not familiar with the procedures of the Tumor Board nor whether there was always a memorandum written of Tumor Board meetings. This lack of personal knowledge on the part of the witness forms the basis for defendant’s claim of lack of qualification of the memorandum under the Act.

A similar contention was rejected in Rossomano v. Laclede Cab Company, 328 S.W.2d 677 (Mo. banc 1959). After an extensive discussion of the Uniform Business Records As Evidence Act and the need to construe it liberally because of the presumption of regularity of such records, the court concluded: “The testimony of the witness as to the ‘mode of preparation’ need not be based upon personal knowledge. This is in keeping with the last clause of $490,680 which provides that the record shall be competent ‘if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission’ ”. (emphasis in original). Id. at 683. Thus, the “bottom line” regarding the admissibility of business records is the discretionary determination by the trial court of their trustworthiness. We find no abuse of discretion here. Indeed, since the hospital remained a defendant until the close of the evidence, the content of its records could be considered as an admission. The memorandum was obviously not prepared in contemplation of litigation, one means of demonstrating a lack of trustworthiness.

But defendant asserts the history set forth in the memorandum upon which the opinions are based is a matter beyond the writer’s personal knowledge and therefore constitutes hearsay within the hearsay. It is.well established in Missouri law that “A proper expert medical opinion contained in a hospital record should ... be accorded dignity equal to that of a similar opinion from the witness stand; ...” Allen v. St. Louis Public Service Company, 285 S.W.2d 663, 667 (Mo.1956). That Dr. Reddi could have expressed his opinions had he testified in person is not challenged. Nor is any attack made upon the adequacy of the facts set forth in the memorandum to support the opinions. Moreover, in State v. Graham, 641 S.W.2d 102, 107 (Mo. banc 1982) the court rejected a contention that it was error to permit a doctor to base his opinion upon the medical findings made by another doctor. A similar conclusion should be reached where the medical opinion is based upon the content of a hospital record which is received in evidence.

The case principally relied upon by defendant on this point, Schears v. Missouri Pacific Railroad Company, 355 S.W.2d 314 (Mo. banc 1962) refutes his argument. In Schears the testimony of a doctor regarding a plaintiffs past medical history was held to be hearsay requiring reversal. The court went on to say such hearsay did not suffice as a proper foundation for an opinion. “If, however, the so-called 'history’ is made up of facts which in themselves are competent evidence, and which are in evidence, then any objection to the use of such ‘history’ must fall.” Id. at 319. See also Hunter v. St. Louis Southwestern Railway Company, 315 S.W.2d 689, 696 (Mo.1958). The salient facts upon which Dr. Reddi based his opinion, the dates and extent of the radiation and the date of the surgery, were in evidence and are not disputed. Indeed, the opinions set forth by Dr. Reddi in the memorandum were merely cumulative to other testimony in the plaintiff’s case. Therefore, even if the admission of the memorandum had been erroneous, it was harmless and not grounds for reversal. Boten v. Brecklein, 452 S.W.2d 86, 96 (Mo.1970); Snodgrass v. Headco Industries, Inc., 640 S.W.2d 147, 159 (Mo.App.1982).

Finally, defendant argues the verdict of $275,000 is excessive warranting a remitti-tur to $60,000.

This court will interfere with the jury’s assessment of damages as approved by the trial court only where the verdict is manifestly unjust and shocking to the conscience of the court. Bender v. Burlington-Northern Railroad Company, 654 S.W.2d 194, 204 (Mo.App.1983). The verdict in this case does not rise to such a level. Because of defendant’s negligence, plaintiff was compelled to undergo two additional abdominal surgical procedures and is permanently required to wear external bags for the voiding of urine. These bags leak and become loose from their attachment to her side causing embarrassment and inconvenience. Medical testimony was to the effect she could anticipate kidney deterioration, formation of stones, Stomal obstruction of the bowel, obstruction of the ureters and other complications. Prior to trial she had already experienced one episode of kidney failure requiring two or three weeks hospitalization.

“The day is past when this Court and the courts of appeals engage in close scrutiny of the amounts awarded by juries for personal injuries.” Fowler v. Park Corporation, 653 S.W.2d at 758.

Judgment affirmed.

STEWART, P.J., and MANFORD, Sp.J., concur.

      . In the memorandum Dr. Reddi described the subsequent surgery by Dr. Bergman to repair the damage to plaintiff’s bladder and ureters as a "total cystectomy" (removal of the bladder). This was incorrect as the remedial surgery consisted of a by-pass of the bladder without actual removal. This error was pointed out to the jury. The nature of the remedial surgery is obviously not a factor upon which the doctor based his opinions regarding the propriety of the timing of the original surgery. Defendant tacitly concedes this and argues only that the mistake demonstrates that the opinions were based upon hearsay.


text:
    Peter SARANDOS, Respondent, v. Lydia GLAUERT, Appellant.
    No. 47634.
    Missouri Court of Appeals, Eastern District, Division Six.
    Oct. 30, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 5, 1984.
    Application to Transfer Denied Jan. 15, 1985.

      Claude Hanks, St. Louis, for appellant.
    John V. LaBarge, Jr., Kirkwood, for respondent.
   CLEMENS, Senior Judge.

Partition suit. Plaintiff’s petition claimed a ¾ interest in the real estate and alleged that defendant owned a lk interest. Defendant filed an answer. Defendant’s counsel subsequently withdrew. New counsel entered the case, but later withdrew. Defendant failed to appear on the date the cause was set for trial and a default and inquiry was granted. On the day of the default hearing, counsel for plaintiff appeared and defendant appeared without counsel. The court received evidence. It found the parties were tenants in common with plaintiff owning a ¾ interest and defendant owning a ¼ interest in the property and entered an interlocutory decree in partition. A commissioner was appointed and a sale of the property was ordered.

On appeal, defendant is presently represented by counsel, and alleges that the court erred: 1) in not allowing her to be represented by counsel; 2) not allowing her a continuance; and 3) imposing unreasonable restrictions upon her during the course of the trial. She does not otherwise challenge the judgment.

We have examined the record. The trial court did not disallow defendant to be represented by counsel. No formal request was made for a continuance, and it appears that none was justified. Finally, the court did not impose unreasonable restrictions upon defendant during the course of the hearing. The decree is supported by the record. An extended opinion would have no precedential value. The judgment is affirmed in accordance with Rule 84.-16(b).

We note that in respondent’s brief he again questions the appealability of this order, claiming this was a default judgment from which no appeal will lie in the absence of a motion to set aside. We believe the order denying a similar motion to dismiss the appeal prior to submission amply resolves this issue: “Respondent’s motion to dismiss the appeal in reliance upon Vonsmith v. Vonsmith, 666 S.W.2d 424 (Mo. banc 1984) is denied. This is not a “true default” in which a motion to set aside is a jurisdictional prerequisite to appeal. See Vonsmith v. Vonsmith, 666 S.W.2d 426, 428 (Mo.App.1984) (n. 2.) ....”

Affirmed.

REINHARD, C.J., and CRIST, J., concur.


author: R. KENNETH ELLIOTT, Special Judge.

text:
    STATE of Missouri, Respondent, v. Mary HYDE, Appellant.
    No. 47854.
    Missouri Court of Appeals, Eastern District, Division Nine.
    Oct. 30, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 5, 1984.
    Application to Transfer Denied Jan. 15, 1985.

      Henry W. Cummings, St. Charles, for appellant.
    John Ashcroft, Atty. Gen., John Munson Morris, Asst. Atty. Gen., Jefferson City, for respondent.
   R. KENNETH ELLIOTT, Special Judge.

Defendant appeals a court-tried conviction and sentence of ninety days in a medium security facility, based on a stipulation of facts filed with the trial court on August 26, 1983. We affirm.

The facts as stipulated indicate that defendant owns an apartment building at 4127 Westminster in the City of St. Louis, Missouri. On January 12, 1983, two detectives proceeded to the rear of that address to investigate the unauthorized use of Union Electric Company electricity. The detectives knew that the electric company had previously disconnected the electricity because of defendant’s failure to pay the electric bill. The detectives observed a wire connecting an adjacent property and defendant’s property. The detectives knocked on defendant’s door and she answered. Defendant was advised of her Miranda rights, which she said she understood.

One of the detectives explained to defendant that they had observed the improper electrical connection and defendant replied, “I own this building here, and my electricity has been turned off for a long _long time. Just because you guys see the wire up there doesn’t mean that you can lock me up for it. How can you prove that I did it, anybody could have done it.” There was no direct evidence that defendant made or assisted in making the unlawful connection or connections. However, the electricity had been turned off for a long time.

The detectives saw an electric light shining, “burning” on the inside of the front first-floor apartment, whereupon the defendant was asked if any other lights were burning in any part of the building. There defendant responded, “Yes, I have got electric [sic] up on the third floor, too. If you want to, I’ll show you what’s up.” Defendant conducted the detectives to the third floor, where a television was playing and a stereo was connected to an electrical outlet. In addition, a No. 12 gauge housewire was connected to an outlet by means of a “male” type plug. The outside and inside wires were removed and seized as evidence.

In addition, on January 12, 1983, an electric company inspector observed at the address in question an electric light, an electric refrigerator, a radio, a television, and a lamp, all operating with electricity. He also noticed a jumper wire to an electrical service at an adjacent address. The electric company inspector observed that the electric meter and electrical service wires to 4127 Westminster had been removed and none of the electricity going into that residence was being measured. The Union Electric Company had removed illegal electrical connections to that address at least 23 times prior to the date of the detectives’ visit. Estimated cost of electrical services since June 4, 1981, the date of disconnection, has been $1,218.00.

It was further stipulated that the electric company had terminated service at the address on June 4, 1981, because of non-payment of electric bills, that the service had never been reconnected, and no one had permission to reconnect electric service.

The parties stipulated to defendant’s previous convictions. Based on these facts defendant was convicted of tampering in the second degree as a prior and persistent offender.

Appellant has urged this court to transfer this cause to the Supreme Court of Missouri under Supreme Court Rule 83.06, alleging that the constitutionality of Paragraph 2 of Section 569.090 RSMo. Supp. 1983, is in question. In relevant part this section provides:

1. A person commits the crime of tampering in the second degree if he:
(3) Tampers with, or causes to be tampered with, any meter or other property of an electric, gas, steam or water utility, the effect of which tampering is either:
(a) To prevent the proper measuring of electric, gas, steam or water service; or
(b) To permit the diversion of any electric, gas, steam or water service.
2. In any prosecution under subdivision (3) of subsection 1, proof that a meter or any other property of a utility has been tampered with, and the person or persons accused received the use or direct benefit of the electric, ... service, with one or more of the effects described in subdivision (3) of subsection 1, shall be sufficient to support an inference which the trial court may submit to the trier of fact, from which the trier of fact may conclude that there has been a violation of such subdivision by the person or persons who use or receive the direct benefit of the electric ... service.

Defendant objects to the words of section two which permit evidence to be considered that reception of “the use or direct benefit” of electric services shall be sufficient to support an inference of a violation of the statute prohibiting tampering with a utility meter.

Defendant has failed to preserve any constitutional argument. To properly raise a constitutional issue, a party must (1) raise the constitutional issue at the first available opportunity, (2) specifically designate the constitutional provision claimed to have been violated by express reference to the article and section of the constitution or by quoting the provision itself, (3) state the facts showing the violation; and (4) preserve the constitutional question throughout for appellate review. City of Eureka v. Litz, 658 S.W.2d 519, 521 (Mo.App.1983). Defendant made a due process “void for vagueness” attack on the information before the trial court. However she has failed to designate which provisions of the constitution the statute violates. Further, defendant’s attack is only against § 569.-090.2 which speaks to an evidentiary inference and not § 569.090.1 which defines the crime charged. The statute under subsection .1 fairly advised defendant of the alleged criminal act. The attack on subsection .2 does not concern the definition of the crime as described in subsection .1. Consequently the void for vagueness argument is inappropriate. See State v. McMilian, 649 S.W.2d 467, 472-473 (Mo.App.1983).

Generally, this court does not have jurisdiction on appeal when an appellant questions the validity of a state statute. Art. V, § 3, Mo. Const.1982. Here, appellant has failed to preserve the constitutional issue and the issue is merely a colorable argument. It is not necessary to transfer this case to the Supreme Court because there is no real constitutional question on appeal. See State v. Chanty, 637 S.W.2d 319, 321 (Mo.App.1982). Appellant’s motion to transfer is denied.

Appellant’s second complaint is that the stipulated evidence is not sufficient to support the finding of guilt, and that the evidence of a wire running from the property next door to appellant’s property does not constitute substantial evidence of her guilt. However, we note that appellant was the record owner of the building in question, was living there, and both using and receiving a direct benefit from the tampering. There was further evidence that Union Electric Company had removed illegal electrical connections from appellant’s property at least 23 times prior to the case at bar.

Review in this case is limited to a consideration of all of the direct and circumstantial evidence in the record tending to prove the defendant’s guilt, finding all reasonable inferences therefrom in favor of the prosecution. State v. Mayes, 654 S.W.2d 926, 928 (Mo.App.1983). All evidence to the contrary and inferences therefrom will be disregarded. State v. Cain, 507 S.W.2d 437, 438 (Mo.App.1974). While the facts and circumstances must contradict and exclude every reasonable hypothesis of innocence, they need not be absolutely conclusive of guilt or demonstrate the impossibility of innocence. State v. Means, 628 S.W.2d 426, 428 (Mo.App.1982). The reviewing court must determine whether there is substantial evidence from which reasonable persons could have found the accused guilty. State v. Harris, 602 S.W.2d 840, 842 (Mo.App.1980). In the case at bar, appellant argues that the state had no direct evidence that appellant made the illegal hook-up which ran from the neighbor’s residence to her apartment building. However, subsection .2 of § 569.-090, RSMo. Supp.1983, provides an eviden-tiary inference that a person who receives a benefit from the electric service has violated the tampering statute.

An inference is a logical and reasonable conclusion of a fact not presented by direct evidence but which by the process of logic and reason, a trier of fact may conclude exists from the established facts. Smith v. Seven-Eleven, Inc., 430 S.W.2d 764, 769 (Mo.App.1968). Although an inference only satisfies the parties’ burden of producing evidence with regard to a particular fact, the trier of fact may accept existence of the assumed fact. City of Kansas City v. Ehinger, 607 S.W.2d 845, 847 (Mo.App.1980).

We find that taking into consideration the stipulated facts and inferences which the trial court found to be true, that appellant’s conviction was supported by the evidence. We affirm.

KAROHL, P.J., and CAMPBELL, Sp.J., concur.


author: REINHARD, Chief Judge.

text:
    In the Matter of Irvin E. WILKINSON, Respondent, v. John BRUNE, Appellant.
    No. 47896.
    Missouri Court of Appeals, Eastern District, Division Six.
    Oct. 30, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 5, 1984.
    Charles J. McEnery, Jr., Clayton, for appellant.
    Briegel, Dempsey, Baylard & Patane, P.C., Union, for respondent.
   REINHARD, Chief Judge.

This is an appeal from two orders of the Circuit Court of Franklin County, Probate Division. One order provided that the widow’s election to take her statutory share of decedent’s estate would be charged proportionately against all beneficiaries of the will, rather than against the residuary estate. The other order apportioned among beneficiaries the cost of certain payments made from decedent’s estate, rather than charging it to the residuary beneficiary as a debt of the estate. John Bruñe, a specific legatee, appeals both orders.

Irvin and Albert Wilkinson, brothers, owned three parcels of land as tenants in common, and approximately $49,000 in joint accounts and certificates of deposit with right of survivorship. Albert individually owned 107 shares of bank stock, 300 shares of stock in U.S. Steel, $1,109 in cash, and a debenture in U.S. Steel.

Albert died testate on May 5, 1979. He devised all his estate to his brother Irvin, and appointed Robert Vossbrink as his personal representative. Albert’s estate owed approximately $27,400 including $19,000 in federal and state inheritance and estate taxes. The debenture in U.S. Steel was sold, and Albert’s liquid assets reduced the obligations to approximately $23,500.

Before Albert’s estate was closed, Irvin died. He appointed Vossbrink and John Bruñe as his personal representatives. Vossbrink and Bruñe paid $23,500 out of Irvin’s estate in order to close Albert’s estate. Irvin’s will provided:

FIRST: I direct the payment of all my just debts and funeral expenses.
SECOND: To my wife, Emma Mae Wilkinson, I give and bequeath one-third (½) of my estate as finally determined for federal estate inheritance tax purposes. This bequest to be in lieu of any and all other allowances of whatsoever nature provided by law.
THIRD: To my friend, John Bruñe, of Franklin County, Missouri, I give devise and bequeath my home farm with all improvements thereon.... This bequest is subject, however, to a one-acre tract upon which is located the Wilkinson family cemetary located on the above tract of land which cemetary is to be maintained and cared for by said John Bruñe and his executors, administrators, successors and assigns. This is also subject to the right of my wife, Emma Mae Wilkinson, to occupy the residence on said farm as long as she desires to use and occupy the house as her home.
FOURTH: Any stock or debentures that I may have in United States Stell [sic] Corporation at the time of my death, I give and bequeath to Otto N. Horn, to have and to hold, absolutely.
FIFTH: All of the rest, residue and remainder of my property and estate, of every kind, I give, devise and bequeath to my friend, Emmet Ming, to have and to hold, absolutely.
SIXTH: All estate taxes, inheritance taxes and successive duties assessed ... against my estate shall be paid by my executors out of the general assets of my estate and thereafter the such taxes shall be apportioned between the beneficiaries of my estate and each beneficiary shall contribute to my estate his or her proportionate sh.are of such taxes and no bequest to any beneficiary shall become final until the beneficiary’s share has made full contribution to my estate, except my wife, Emma Mae Wilkinson, who shall not be required to make any contribution. It being my desire and my will that such taxes shall be charged against or deducted from such gift, devise or bequeath upon or by reason of which such taxes are assessed and paid, except in the case of my wife. My executors, however, shall not be charged with the payment of any Missouri Inheritance Tax which cannot be determined finally as of the date of my death.

Pursuant to § 474.160 RSMo. 1978, Irvin’s wife, Emma Mae Wilkinson, renounced the will and elected to take her statutory share of the estate rather than the one-third (Vs) Irvin had devised to her. Because there were no lineal descendants, she was entitled to one half of the estate.

The principal issue in this case is how a surviving spouse’s election to take against the will affects the distribution of the rest of the estate when the testator has not specified what is to happen. Clearly, when the testator has so provided in his will, the testator’s intent is given effect. However, in cases where the testator has not so provided, the parties appear to agree that the issue is not clearly resolved by the Missouri cases. See e.g., Mercantile Commerce Bank & Trust Co. v. Binowitz, 238 S.W.2d 893 (Mo.App.1951); cf. In re Howe’s Estate, 379 S.W.2d 154 (Mo.App.1964). These cases offer little guidance for determining who bears the loss when the testator’s intentions are not apparent.

Generally, there are two views on the issue. Both views are subject, of course, to the testator’s expressed intent to the contrary. One view is that when a surviving spouse elects to take against the will, the loss caused by the spouse’s increased share is distributed among the beneficiaries by using the general rules of abatement. In other words, the loss is first assessed against the residuary estate, next against general legacies, and then against specific legacies, if necessary. The rationale behind this view is that the testator probably would have intended to give his specific legatees a preference over general legatees, and general legatees a preference over residuary legatees. For applications of this view, see Campbell v. Cason, 206 Miss. 240, 40 So.2d 258 (Miss. banc 1949); Crocker v. Crocker, 230 Mass. 478, 120 N.E. 110 (1918).

The other view is that the surviving spouse takes an undivided interest in all property in the estate, and the loss is distributed pro rata among all the remaining beneficiaries, regardless of the class of their legacies. The basis for this view is that the general plan of the will is preserved, and the intended balance between preliminary and residuary beneficiaries is maintained. This view recognizes that the testator does not necessarily prefer his specific legatees over general and residuary legatees. In fact, the exact opposite may be his intent. The testator may wish to leave some specific but less significant items to specific legatees, and the bulk of the estate to another through the residuary clause. For application of the pro rata view, see In re Rosenzweig’s Will, 19 N.Y.2d 92, 278 N.Y.S.2d 192, 224 N.E.2d 705 (1966); In re Povey’s Estate, 271 Mich. 627, 261 N.W. 98 (1935); In re Taylor's Estate, 213 Minn. 509, 7 N.W.2d 320 (1942).

Here, the order of the trial court was in line with the second view. The widow received a “common one-half interest of each asset of the estate subject to payment of claims and cost of administration or one-half of each specific bequest and one-half of the residuary ...” Appellant Bruñe argues that the electing spouse’s increased share should be charged against the remaining beneficiaries under the general rules of abatement in § 473.620 RSMo. 1978, which follows the first view above: the loss would fall first on the residuary estate, then on the general legacies, and then, if necessary, on the specific legacies.

The election statute itself does not indicate where the loss to remaining beneficiaries should fall. Section 474.160 RSMo. 1978. There is case law which indicates that an electing spouse takes an undivided interest in all of the real property in the estate. See, e.g., Borchers v. Borchers, 352 Mo. 601, 179 S.W.2d 8,10 (1944); Wigley v. Beauchamp, 51 Mo. 544, 547 (1873); In re Estate of Youngblood, 447 S.W.2d 824, 827 (Mo.App.1969), ajfd 457 S.W.2d 750 (Mo. banc 1970). However, these cases were either decided before the current election statute or their language is not disposi-tive of the issue before us.

Bruñe notes that the omitted spouse statute, § 474.235 RSMo. Supp.1983, expressly provides that the abatement rules of § 473.620 apply in an omitted spouse situation. He argues by analogy that the abatement statute should also apply to an election by a surviving spouse. Evaluation of this argument calls for a closer examination of these statutes.

We note initially that although the election statute provides that the electing spouse takes “by descent,” § 474.160 RSMo. 1978, this does not mean the spouse takes under the general intestacy statute. Rather, the spouse takes strictly under the election statute. Jones v. Jones, 376 S.W.2d 210 (Mo. banc 1964).

Prior to the enactment of the current election statute, an election such as the present one was governed by §§ 469.110 and 469.090(2) RSMo. 1949 (repealed 1956), which provided that the electing widow was entitled to “one-half of the real and personal estate belonging to the husband at the time of his death, absolutely, subject to the payment of the husband’s debts.” The current election statute, § 474.160(1) RSMo. 1978, provides that the electing spouse shall receive “one-half of the estate.” The term “estate” is defined in § 472.010, RSMo. Supp.1983, to mean “the real and personal property of the decedent...” Applied literally, the statute indicates that the electing spouse actually takes an interest in each item of property.

Both the current election statute and the applicable section of the definitional statute were enacted in 1955 and are based on the Model Probate Code of 1946. See Commit-⅛ tee Comments following § 472.010, RSMo. Supp.1957 (explaining source of definitions, including definition, of “estate” as it appears in the current statute) and § 474.160, RSMo. Supp.1957 (explaining source of election statute). The abatement statute was also enacted in 1955, and the Committee Comment indicates that it, too, was based on the Model Probate Code. Section 473.620 RSMo. Supp.1957. However, unlike the election and definitional statutes, the abatement statute as enacted differs significantly from the version in the Model Probate Code. The Model Probate Code § 184 provides that “shares of the distribu-tees shall abate, for ... the share of the surviving spouse who elects to take against the will, without any preference or priority as between real and personal property, in the following order: (1) Property not disposed of by will; (2) Property devised to the residuary devisee; (3) Property disposed of by the will but not specifically devised and not devised to the residuary devisee; (4) Property specifically devised.” Model Probate Code, § 184 (1946) (emphasis added). The clause providing that the abatement statute applies to an election is conspicuously absent from the Missouri version, which provides: “When it is necessary that there be an abatement of the shares of the distributees, they shall ... abate, without any preference or priority as between real and personal property, in the following order: (1) Property not disposed of by the will; (2) Residuary devises; (3) General legacies; (4) Specific devises .... ” § 473.620, RSMo. 1978. The Missouri statute is silent as to whether it applies in an election situation.

The omitted spouse statute, which Bruñe cites in support of his argument, was new in 1980. Section 474.235 RSMo. Supp.1983. Under this statute, a surviving spouse who married the decedent after the execution of the will and is not named in the will is entitled to a share of the estate equal to an intestate share. The statute expressly provides: “In satisfying a share provided by this section, the devises made by the will abate as provided in Section 473.620 RSMo. [the abatement statute].” Section 474.-235.2 RSMo. Supp.1983. However, the election statute makes no such express provision that the rules of abatement apply in an election situation.

The Missouri omitted spouse statute is based on § 2-301 of the Uniform Probate Code, which supercedes the Model Probate Code. See Comment to § 474.235, Missouri Probate Code-1980, MoBar CLE (1980). Although the Uniform Probate Code expressly applies the rules of abatement to an omitted spouse situation, it does not do so in an election situation. Uniform Probate Code (U.L.A.) § 2-207(b) (1983) provides: “Remaining property of the augmented estate is so applied that liability for the balance of the elective share of the surviving spouse is equitably apportioned among the recipients of the augmented estate in proportion to the value of their interests therein.” (emphasis added). Thus, the Uniform Probate Code differentiates between the two situations.

We note that the Missouri omitted child statute also was amended in 1980 to provide that the abatement rules of § 473.-620 also apply to an omitted child situation. Section 474.240 RSMo. Supp.1983. This statute was originally enacted in 1955 (then entitled “Pretermitted children”) and was based on the Model Probate Code, as was the election statute. See Committee Comments following § 474.240 RSMo. 1978. In light of the fact that both the omitted spouse statute and the omitted child statute were amended to incorporate the abatement rules, but the election statute was not, it appears unlikely that the legislature intended for the abatement statute to apply to an election. In construing a statute, we must give effect to the expressed intent of the legislature; we must not add provisions under the guise of construction if they are not plainly written or necessarily implied. Missouri Public Service Co. v. Platte-Clay Elec. Coop., 407 S.W.2d 883 (Mo.1966); Wilson v. McNeal, 575 S.W.2d 802 (Mo.App.1979). Furthermore, we presume the legislature acts with knowledge of existing law, Bushell v. Schepp, 613 S.W.2d 689 (Mo.App.1981), which would include the above-mentioned case law holding that the electing spouse takes an undivided interest in the estate property. If the legislature had intended to change that law, it would have so stated.

The language of Missouri case law on elections is inconsistent with the rules of abatement. When the abatement statute was first enacted, the legislature deleted from the Model Probate Code version a clause expressly applying the abatement rules to an election. When the probate code was revised in 1980, the legislature used the Uniform Probate Code as a model when it expressly applied the abatement rules to other situations, but no change was made in the election statute. These facts, together with the similar treatment of the issue in the Uniform Probate Code, lead us to conclude that the legislature did not intend for the abatement statute to apply to an election to take against the will. We affirm the trial court’s order on this issue.

The record is skimpy as to appellant Brune’s second point. In his brief he complains that “the court erred in charging appellant’s specific devise with'a pro rata share of decedent’s debt without first exhausting the residuary estate to satisfy same, inasmuch as the payments were debts and not advances.”

On August 22, 1983, the co-personal representatives, Vossbrink and appellant Bruñe, petitioned the probate court. The petition first alleged that Irvin inherited property from Albert’s estate, that Albert’s estate did not have sufficient cash assets to pay all expenses of administration which were liens on the assets of the estate, and that most of these expenses were estate and inheritance taxes. The petition further alleged that Irvin had agreed during his lifetime to pay the expenses of Albert’s estate so as to avoid selling the assets in the estate, and that Irvin’s personal representatives had already advanced to Albert’s estate the sum of $23,527.42. The petition then requested that the court “allow the advancement of $23,527.42 as a deduction of the estate or in the alternative apportion said expenses against the assets of the Estate of Irvin E. Wilkinson.”

A hearing was held on the petition. The only witness was Vossbrink, who, as previously noted, was the personal representative of the estate of Albert, and co-personal representative of the estate of Irvin. He testified that Irvin told him he would pay these expenses “out of his own pocket.” Irvin died prior to doing so and prior to the closing of Albert’s estate. Vossbrink and Bruñe paid the expenses out of Irvin’s estate.

The trial court found that “said transfer was an advance made by the Personal Representatives of the estate of Irvin E. Wilkinson with the consent of the devisees of Irvin E. Wilkinson’s estate and was not in the nature of the payment of a claim or expense of the Irvin E. Wilkinson estate.” The court ordered the advance to be charged proportionately against the devi-sees and heirs of Irvin E. Wilkinson, according to the respective shares of assets received from the Albert E. Wilkinson estate.

On the record before this court, we conclude that the trial court did not err in determining that the payment was an advance, and not a debt of the estate of Irvin E. Wilkinson as appellant now claims. As stated in 34 C.J.S. § 491 (1942), “Advances and disbursements made by the representative for the benefit of legatees or distributees of the estate are to be reimbursed from their respective portions of the estate.” Under the standard of review set out in Murphy v. Carrón, 536 S.W.2d 30 (Mo. banc 1976), the judgment is affirmed.

CRIST and KAROHL, JJ., concur.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Johnny Lee POWELL, Defendant-Appellant.
    No. 48238.
    Missouri Court of Appeals, Eastern District, Division One.
    Oct. 30, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 5, 1984.
    Application to Transfer Denied Jan. 15, 1985.

      David C. Hemenway, Asst. Public Defender, St. Louis, for defendant-appellant.
    John Ashcroft, Atty. Gen., John Munson Morris, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   KAROHL, Judge.

Defendant-appellant was jury-tried, convicted and sentenced to serve twelve years for robbery second degree, § 569.030, RSMo. 1978. The jury determined punishment.

Defendant testified and disputed the victim’s testimony that he and another assaulted Joseph Beck and stole Beck’s coat, wallet, watch, money, keys and cigarette lighter. Defendant admitted he was drunk and his companion took Beck’s coat but denied any personal involvement in the taking. Three witnesses observed the event, one of whom testified that he saw the scuffle and heard Beck protest and plead that his personal property not be taken. Beck and the witnesses hailed passing police officers who chased and caught defendant and his companion. Defendant had in his possession the wallet, watch, keys, lighter and money. There was abundant evidence of guilt.

Defendant argues three points. He contends first, that the prosecutor’s comments during voir dire concerning the state’s burden of proof had the effect of compelling defendant to testify. Second, he contends that the state’s cross-examination question of defendant, “Did you tell the police when they arrested you that it was Everett Boyd who took the coat?”, violated defendant’s right to remain silent and invited the jury to convict him on the basis of post-arrest silence. Last, he maintains that the admission of two prior Indiana convictions for the purpose of impeaching the defendant was erroneous because they were not properly certified.

A defendant’s right to remain silent is protected by the Fifth Amendment to the federal constitution, Article I, § 19 of the Missouri Constitution, § 546.270, RSMo. 1978 and Supreme Court Rule 27.-05(a). State v. Gray, 503 S.W.2d 457, 461-462 (Mo.App.1973). Collectively these statements of the law prohibit any direct reference on defendant’s right to or failure to testify. See State v. Barker, 399 S.W.2d 1, 3 (Mo.1966). Our Supreme Court reversed and remanded in State v. Lindsey, 578 S.W.2d 903, 904 (Mo.banc 1979) when the prosecutor told the venire panel, “Mr. Lindsey doesn’t have to go forward with any evidence if he doesn’t wish to. He doesn’t have to take the stand if he doesn’t want to.” Our Western District granted a new trial in State v. Croka, 646 S.W.2d 389, 390-391 (Mo.App.1983) when the prosecutor said in voir dire, “and I anticipate the defendant will testify.” Here the facts are quite different as there was no direct reference to defendant and the right to not testify. The prosecutor alluded to the defendant’s presumption of innocence; stated that the fact that defendant was charged was not evidence of guilt; noted that the state had the burden to prove its case and defendant had no burden to prove innocence by his evidence and asked if any venire person would “require the defense to put on a case.” Each comment correctly states the law and the testimony of defendant was never directly referred to or implied. Defendant was not denied a fair trial on this account. The court correctly overruled the objection and denied a mistrial. As mentioned in Croka the fact that defendant ultimately testified is immaterial because the effect of an improper statement on a jury is assessed at the time it is made. 646 S.W.2d at 391. The comments here were not improper when made so it cannot be said they coerced defendant into testifying.

We find no error in the state’s cross-examination question of defendant relating to a post-arrest statement. Silence of an accused while under arrest is not admissible against him at trial because there is no duty to speak. State v. Stuart, 456 S.W.2d 19, 22 (Mo.banc 1970). Although the question invited error none occurred because the question remained unanswered due to a timely objection. Although defense trial counsel believed an answer had been given none appears in the record. The question itself was not evidence, State v. Chamberlain, 648 S.W.2d 238, 241 (Mo.App.1983), and the jury was so instructed by MAI-CR 2.02. Accordingly there was no evidence of either a post-arrest statement or post-arrest silence and defendant’s rights were not violated. We recognize the danger in this question as it relates to other trials and note that it should not be asked.

Finally, appellant argues that evidence of out of state prior convictions allegedly concerning him, although under a different name, should not have been admitted into evidence because they were not properly authenticated. During oral arguments the attorneys for both sides agreed that even if the admission was improper it was not reversible error. Our Supreme Court upheld the admission of similar records in State v. Brown, 476 S.W.2d 519 (Mo.1972) because of a presumption of regularity and genuineness of the writing. Here the records were admitted solely for the purpose of impeaching the defendant. He was given the opportunity in redirect to cure any damage to defendant’s credibility these records may have caused.

Finding no error in the trial court judgment, we affirm.

PUDLOWSKI, P.J., and GAERTNER, J., concur.

      . The prosecutor's statements during voir dire were as follows:
      [Prosecutor]: ... There are certain legal concepts — legal precepts — that we abide by under our system of laws, and a few of these I want to go over with you briefly.
      As Mr. Powell sits here at the counsel table, he is shielded with, guarded by, the presumption of innocence. All of you who are sitting here at this moment should be presuming that he is innocent and that presumption maintains he is afforded that presumption up until the time that the twelve who are selected, in the jury room, after deliberations, unanimously decide otherwise; but, up until that moment, he is given this presumption of innocence.
      Is there anybody here that has a problem with that or disagrees with that, thinks that you shouldn’t have to be presuming him innocent at this point?
      The expression "Where there is smoke, there is fire”? Obviously, he has been charged with a crime. He is here in court having to face trial. Does anybody have the feeling, "Well, because he is going to trial, he must have had something to do with it or he must be guilty of something somehow”? Okay.
      And when I ask a question like that and I don’t see any response, I assume everybody is saying, "No, I don’t feel like that. I am giving him that presumption of innocence," and that is just as it should be.
      The State of Missouri charges Johnny Powell, that’s why this is the State of Missouri vs. Johnny Powell, that is the style of this case, because we charged him, we brought the charges.
      It’s our burden to prove what we’ve charged. We have to prove his guilt.
      In any criminal case, the State has the burden of proving their allegations, proving the charge.
      The defense does not have to prove anything. There’s no requirement for the defendant to prove to you that he is innocent or to counteract by his evidence the evidence that I put on the stand.
      Is there anybody that has a problem with that?
      [DEFENSE ATTORNEY]: Your honor, I will object to that and ask to approach the bench.
      (Counsel approached the bench and the following proceedings were had out of the hearing of the jury:)
      [DEFENSE ATTORNEY]: Your Honor, I am going to object at this time to the question asked by Mr. Randall on the basis that the comment on the defendant’s right not to present any evidence, right to remain silent, it is a violation of his rights under the Fifth Amendment, as well as Article XV of the Missouri State Constitution, for the reason that by asking that question in front of the jury panel, it is indicating to them that we have to present evidence or we have a right to present evidence, and I object to it for that reason — the defendant’s evidence — we do not have to do that and he is trying to force us into presenting evidence.
      I object to it for that reason.
      THE COURT: Mr. Randall?
      [DEFENSE ATTORNEY]: I ask that a mistrial be declared and the jury panel be discharged.
      [PROSECUTOR]: I think that the jury may have presumed from my question that defense has a right to put on evidence. I think they all understood that in advance of coming in here.
      My comments and my question, when I used the pronoun “him," I was referring to Mr. Lane and I was using the word “defense” in general. I didn’t say “the defendant.”
      I don’t see anything improper or misleading about those comments.
      THE COURT: The objection is overruled.
      (The proceedings returned to open court.)
      THE COURT: You may proceed, Mr. Randall.
      [PROSECUTOR]: Is there anybody here who feels that that is wrong and the defense should have some burden of coming forward with some evidence to counteract or contradict the evidence that I put on?
      [DEFENSE ATTORNEY]: Your Honor, same objection; same reasons.
      THE COURT: Overruled.


text:
    Zoretta SCHOONOVER, et al., Respondents, v. Charles LAMPE, et al., Appellants.
    No. 48387.
    Missouri Court of Appeals, Eastern District, Division Five.
    Oct. 30, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 5, 1984.
    Application to Transfer Denied Jan. 15, 1985.
    David L. Baylard, Kenneth B. Dopuch, Union, for appellants.
    William W. Eckelkamp, Washington, for respondents.
   CLEMENS, Senior Judge.

Plaintiffs prevailed in this declaratory judgment action and defendants have appealed.

Plaintiff-respondents are owners of eleven unimproved lots in Lake St. Claire subdivision, composed of 1,350 lots on which only 83 homes have been built. On these 83 developed lots the owners have installed private septic tanks. The subdivision adjoins but is not part of the city of St. Claire.

Defendant-appellants are members of the board of supervisors of the St. Claire Sewer District of Franklin County. The defendant board enacted an ordinance designed to finance installation of an overall sewage system to be connected in the future to the St. Claire city system. This would require taxing each lot owner from $30 to $60 a lot; in five years this would produce about $405,000. The district would then become eligible for a $500,000 state grant to complete the estimated $900,000 overall cost.

At the end of testimony the circuit court entered judgment for plaintiff lot owners, ruling that defendants’ proposed ordinance seeking to impose fees on lot owners was beyond statutory provisions.

The trial court’s denial of defendant’s proposed tax levy is well-founded. In Adams v. City of St. Louis, 563 S.W.2d 771[1] (Mo. banc) the court held a tax measure is to be construed in favor of the taxpayer. In Shively v. City of Keytesville, 241 Mo.App. 239, 238 S.W.2d 682[3-5] (1951) the court held that municipalities may levy taxes only in the manner granted by the statute and such a grant “must be evident and unmistakable, and all doubts will be resolved against its exercise, and in favor of the taxpayer.”

So considered, we uphold the trial court’s decree that the defendant’s proposed tax is invalid and unenforceable.

Affirmed.

STEWART, P.J., and CRANDALL, J„ concur.


author: STEWART, Presiding Judge.

text:
    Frances BLANKENSHIP, Relator, v. The Honorable Milton A. SAITZ, Judge, Division 17, Circuit Court of the County of St. Louis, Missouri, Respondent.
    No. 49173.
    Missouri Court of Appeals, Eastern District, Division Six.
    Oct. 30, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 5, 1984.
    Application to Transfer Denied Jan. 15, 1985.

      Stephen H. Ringkamp, St. Louis, for relator.
    Raymond C. Lewis, Jr., Columbia, for respondent.
   STEWART, Presiding Judge.

This is a proceeding in prohibition. The respondent upon motion dismissed relator’s damage suit on the grounds of forum non conveniens. We issued our preliminary writ of prohibition.

Relator filed a suit seeking damages for medical malpractice in St. Louis County on April 11, 1984. She filed an identical suit in Cole County on April 16, 1984. The actions allege malpractice by E. David Scott, M.D., E. David Scott Medical Services, Memorial Community Hospital Association of Jefferson City, Sisters of St. Mary, Jefferson City Radiologists, Inc. and Byron E. Watts, M.D. The petition alleges that the medical treatment giving rise to the action was rendered in Jefferson City, Cole County. Relator resides in the city of Fulton, Callaway County, approximately 25 miles from Jefferson City. The registered agent for the Sisters of St. Mary is located in St. Louis County.

The trial court sustained the motions of all defendants to dismiss for forum non conveniens. The sole issue formed by the parties is whether the doctrine of forum non conveniens is available as to actions in which there are two or more forums available within the State of Missouri. Relator does not contend that the trial court abused its discretion if the doctrine of forum non conveniens is viable as to intrastate cases.

The parties are agreed that the Circuit Court of St. Louis County has jurisdiction of the subject matter and is a proper venue for the action. Cole County is also an available forum for the action.

The doctrine of forum non con-veniens has been recognized as an arm of the courts of this state requiring no statutory authority for its application. Loftus v. Lee, 808 S.W.2d 654, 661 (Mo.1958); Elliott v. Johnston, 365 Mo. 881, 292 S.W.2d 589, 593 (Mo.1956); as instructive see Torres v. Walsh, 98 Ill.2d 338, 74 Ill.Dec. 880, 456 N.E.2d 601 (Ill.1983). The doctrine cannot be applied by the trial court unless the court in which the action is filed has jurisdiction of the subject matter and venue is proper. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 504, 67 S.Ct. 839, 840, 841, 91 L.Ed. 1055 (1947). The doctrine is “to be applied with caution and only upon a clear showing of inconvenience and when the ends of justice require it.” Loftus v. Lee, supra.

The basic factors to be weighed in making a determination whether to invoke the doctrine of forum non conveniens include the “place of accrual of the cause of action, location of witnesses, the residence of the parties, any nexus with the place of suit, the public factor of the convenience to and burden upon the court, and the availability to plaintiff of another court with jurisdiction of the cause of action which affords him a forum for his remedy.” State ex rel. R.I. & P.R. Co. v. Reiderer, 454 S.W.2d 36, 39 (Mo. banc 1970).

The reported cases in Missouri have concerned non-residents of this state. There are no cases limiting the application of the doctrine to such cases. If the rationale for the use of the doctrine of forum non conveniens is sound then it follows that the doctrine should apply to all cases in which the basic factors are present. It has been said the plaintiff may not by the choice of an inconvenient forum “vex,” “harass” or “oppress” the defendant by inflicting upon him expenses or trouble not necessary to his own right to pursue his remedy. Gulf Oil Corp. v. Gilbert, 330 U.S. at 508, 67 S.Ct. at 843. The ultimate decision rests within the sound discretion of the trial court which is reviewable only for abuse of discretion. “Discretion is abused only if the ruling is against the logic of the circumstances and if reasonable men could not differ as to the decision.” Carwell v. Copeland, 631 S.W.2d 669, 670-671 (Mo. App.1982). Relator does not raise this issue.

The dismissal for forum non conven-iens is of its very nature, a dismissal without prejudice so that plaintiff may pursue his remedy.

Our preliminary writ of prohibition heretofore issued is quashed.

SMITH and CRANDALL, JJ., concur.

      . Respondent has referred us to a file in this court in which we refused to issue our preliminary writ of prohibition where they claim the facts were similar to those in this proceeding. The denial of an application for a writ of prohibition is not a ruling on the merits of the cause and has no precedential value and may not be relied upon as authority.