*1 McCLUNEY, Appellee, Forrest CO., BREWING
JOS. SCHLITZ Appellant. No. 80-1383. Appeals, United States Eighth Circuit. 14, 1981. Jan. Submitted 20, 1981. May Decided Rehearing En Banc Rehearing and 30, 1981. June Denied 1, 1981. July Rehearing Denied
I
In Forrest McCluney was a vice president for the Geo. Muehlbach Brewing Company in City, Kansas Missouri. Schlitz purchased Muehlbach in 1956 and hired McCluney as the industrial relations mana- ger for its City plant; Kansas promoted Schlitz McCluney plant mana- ger.
In McCluney Schlitz offered position of plant manager at its Winston- plant. plant Salem That was considerably larger than the City plant. Kansas promotion greater responsibil- afforded him ity promised challenge. weighing competing After benefits and offer, burdens of accepting Schlitz’s he de- to accept Accordingly, cided it. he moved to North job. Carolina and started his new McCluney retained it for nearly years. five May, president the executive vice Schlitz, Peters, Gene McCluney offered promotion, position another pres- of vice plant operations ident of corpo- at Schlitz’s Milwaukee, headquarters rate Wisconsin. promotion promised This McCluney even greater responsibilities, including oversee- ing corporate responsible plant staff for operations. salary A substantial increase Linde, Thomson, Fairchild, Langworthy McCluney was also of the offer. ac- Kohn, (argued), & Robert G. Oberlander J. cepted challenge the offer for Mo., Vaughan, City, ap- Michael Kansas presented opportunity and for the it offered pellee. implement management his ideas. He begin job. moved to Wisconsin to his new Gage Tucker, (ar- Kelly & Paul Scott Jr. Moeller, Mo., gued), City, James L. Kansas Wisconsin, McCluney sought Once in appellant. Rinne, secretary, transfer of his Lois from compa-
Winston-Salem to Milwaukee. The
her,
ny
citing
refused to transfer
its formal
GIBSON,
Judge,
Before
Senior Circuit
management policy as the reason for the
ARNOLD,
and HEANEY and
Circuit
denial.
asked Peters to make an
Judges.
exception
push
in Ms. Rinne’s ease and
through
request
the transfer. This
HEANEY,
Judge.
Circuit
McCluney persisted
also denied.
with his
Brewing
Company ap-
Jos. Schlitz
request, arguing to Peters that Schlitz’s
peals
pursuant
jury
management policy
shaky ground
was on
finding
verdict
liable for breach of
Schlitz
legal standpoint
from a
as it had a discrimi-
I),
(Count
an
and will- natory impact
employees.
on women
He
ful and malicious violation of the Missouri
exception
if an
was not
told Peters that
statute,
service letter
Rinne,
Mo.Ann.Stat.
290.-
made for Ms.
there would “come a
(Count II).
We affirm
parting
ways.”
replied
as
Count
if
Peters
persisted,
reverse as to Count II.
would have to
The basis of
service letter
resignation.
This confrontation
demand his
22,1975. The
Friday, August
response
was that
was false
place
took
claim
McCluney if he
Monday,
and,
therefore,
Peters asked
next
actionable under Missouri
mind.
stated
changed
his
had,
determined that
law.
responded by
not and Peters
that he had
fact,
violated the Missouri service letter
*3
McCluney re
resignation.
for his
asking
nominal damages
statute.
It assessed
at
resign,
pick
I will
When I
torted: “Oh no.
$400,000.
punitive damages at
$1.00
me,
time,
you
fire
will
you
and when
McCluney’s
The basis of
contract claim for
instructed
Peters
then
pick the time.”
company
was a
directive
pay
severance
is-
replace
his desk. A
McCluney to clean out
personnel,
sued
director of
Rob-
subsequently named.1
ment was
ert Creviston. Creviston’s Memorandum
requested
brewery
a letter of
Although
was sent to each of the
industrial
Schlitz
McCluney, he refused to
resignation from
managers.
relations
Under
Creviston
one,
he
reasoning in
that
would Memorandum,
tender
McCluney was entitled to six
he
pay if
did. Later that
lose his severance
$32,500.
pay
months severance
for a total of
press
a
release that stat-
day,
issued
Schlitz
McCluney asserted that the Creviston Mem-
That release
McCluney
resigned.
ed
had
writing
into
what
merely put
orandum
had
Management
in the
Bulle-
appeared
Schlitz
Company’s long standing practice,
been
in the Wall
reported
tin and was
Street
and that
the Memorandum itself had been
Journal,
the Milwaukee Sentinel and the
people
distributed to himself and
other than
(Winston-Salem).
City
Twin
Sentinel
brewery
managers.
industrial relations
termination,
McCluney’s
after
days
Three
had,
jury
The
determined that
Schlitz
McCluney a letter and enclosed
Schlitz sent
fact,
agreement
provide
breached its
sev-
* * *
salary payment
check as “final
fol-
$32,500.
pay,
McCluney
erance
and awarded
* *
lowing
resignation
*.”
your
check, denying that he had
returned the
II
resigned.
The United States Constitution lim
later, McCluney requested
A few months
power
its the
of a forum state to
service letter
from
in the form
legal
substantive law to factual and
situa
provided for
290.140
§
under Mo.Ann.Stat.
tions with which it has little or no contact.
(Vernon).
responded
that
The
constitutional bases
the limitation
Thereafter,
resigned.
McCluney filed
had
Clause,
are found in the Due Process
All
County,
suit in
of Jackson
the Circuit Court
Hague, - U.S. -,
state Ins. Co. v.
101
contract,
alleging breach of
viola-
633,
n.10,
S.Ct.
637-638 &
judgment,
appeal
and no
was taken
341-312,
(1930),
74
926
and the Full
McCluney’s other claims
L.Ed.
that dismissal.
Faith and
Allstate
jury.
were tried to a
Credit Clause.2
Ins. Co.
reasoned,
creating majority,
the trial was whether
result and thus
however,
1. A central
issue at
voluntarily resigned
conceptual
or was dis-
that the
framework
and, therefore, proper
involuntarily.
two clauses are different
analysis
missed
The
determined
necessarily
logi-
involuntary.
under either must
be
termination
cally
Leflar,
generally
finding
distinct.
Id. at 644-645. See
R.
clearly supports
and we
evidence
§§
American Conflicts Law
55-62
appeal.
it on
will not disturb
Weintraub,
(1977);
Commentary
R.
on the
Laws,
(1980); Kirgis,
recently suggested
9.2A
§
Conflict of
2. The
Court has
oper-
provisions
Full Faith and
Roles of Due Process and
Credit
constitutional
that the two
Law,
applies
atively
in
(1976);
62 Cornell L.Rev.
95-128
its sub-
Choice
identical when a
Author,
Leflar,
Response
extraterritorially.
A
from the
34
Allstate Ins.
stantive laws
Martin,
(1980);
Hague,
Con-
n.10
Ark.L.Rev.
245-250
101
637-638 &
Co. v.
Stevens,
(1981).
concurring
stitutional Limitations on Choice
Mr. Justice
Hague, supra,
litigation.
v.
at 637-638 & come of the
See Allstate Ins. Co.
n.10;
Office, Ltd.,
Clay
supra,
640;
v. Sun Ins.
Hague, supra,
101 S.Ct. at
Clay v.
1197-1198;
180-181,
at
84 S.Ct.
Office,
U.S.
Ltd., supra,
Sun Ins.
at
U.S.
Yates,
Mutual Life Ins. Co. v.
John Hancock
181-183,
1198-1199;
84 S.Ct.
Richards v.
178, 181-183,
129, 131-132,
States,
1, 15,
United
369 U.S.
82 S.Ct.
(1936);
Until
it was unclear whether the
due
limitation
a state’s extra-
explained
Court’s decisions can be
territorial
lawof
mirrored the
the basis of the contacts in each case.
process analysis
due
for determining the
Dick,
Yates and
the Court ruled that
judicial jurisdiction.
limits of a state court’s
states involved
*4
only
insignificant
an
linked,
concepts
closely
and com-
contact with
parties
the
or the cause of
suggested
mentators have
that essentially
and,
therefore,
action
application of the
the
principle
applied
same
should be
with
states’
laws was unconstitutional. Dick
Martin,
reference to both situations. See
says nominal residence alone is not enough.
Law,
Personal Jurisdiction and Choice of
says post-occurrence
Yates
change of resi-
872,
(1980); Reese,
Mich.L.Rev.
872-873
dence to the forum state alone is not
Jurisdiction,
Legislative
78 Colum.L.Rev.
enough.
Allstate Ins.
Hague,
See
Co. v.
1587,1591
Reese,
(1978);
Limitations on the
supra, 101
hand,
S.Ct. at 639.
theOn
other
Law,
Application
Extraterritorial
4 Dal-
the
Court has found sufficient
589,
(1978).
housie L.J.
It seems that
permit
contacts to
the extraterritorial appli-
question
the
has
been answered
the Su-
cation of the law of the forum state in a
preme
in Allstate
Hague,
Ins. Co. v.
number of instances.
supra.
Hague,
the Court stated that
(1)
employment
When an
for a
substantive law
contract was
State’s
to be select-
in
executed in
constitutionally permissible
per-
ed
a
California
work to be
man-
ner,
significant
employer,
that State must have a
formed outstate and the
who was
California,
significant aggregation
contact or
business in
agreed
of con-
to
tacts,
interest,
creating
transport
state
the
such that
worker outstate and bring
arbitrary
again
choice of its law is neither
him
nor
back
when the work was fin-
ished,
fundamentally unfair.
California law
properly applied
was
to a
arising
suit
out of the
at 640.
S.Ct.
relationship. See Alaska Packers Ass’n v.
Hague is consistent with the Court’s
Comm’n,
532,
Industrial Acc.
294 U.S.
legislative jurisdiction
earlier
cases and its
518,
(1935).
Cornell
process,
L.Rev.
186-201
facts of this case violates due
we need
Jurisdiction,
Legislative
question
78 Colum.L.Rev.
not and do not address the
under Reese,
(1978);
1587-1591
Full Faith and
Limitations on the
Credit Clause.
Application
Extraterritorial
4 Dalhous-
Legislative jurisdiction
does not denote sim-
(1978).
ie L.J.
589-590
ply
state;
lawmaking power
of a
rather it
parties
present appeal
submitted
power
apply
refers to the
laws
process question.
the case as a due
Since we
any given
jurisdiction,
set of facts. Judicial
determine that the extraterritorial
power
try
in
is the
of a state to
of the Missouri service letter statute to the
particular
in
action
its courts.
follows, necessarily,
party may
that no
the District and its surround-
tion work in
prop-
areas,
expect
law of the District was
the forum state’s
ing
“reasonably”
dispute arising
out
an
erly applied to
In such a
law cannot control
the case.
Virginia.
that occurred
See
situation,
accident
power
the forum state’s
Co.,
Mutual Ins.
Liberty
v.
U.S.
Cardillo
unquestionable.4
its own law is
469, 67
under Mo.Ann.Stat. McCluney’s argument or stands falls his service letter from McCluney received employment contention that his Schlitz, he moved to Missouri and instituted originally contract was entered into in Mis this action. thereupon souri in became fixed McCluney’s post-termination Apart from king and immutable. “once a Missouri, move to he had had no real con- always king” argument unpersuasive. years. five tact with that state for Schlitz Although entirely it is not clear from the City plant September, closed its Kansas court’s opinion, appear it would December, plant and sold plaintiff performed essentially in Bliven nearly years prior McCluney’s two termi- same employment facility, function in each Although nation. Schlitz sells beer f. o. and the court the involuntary characterized distributors, plant dock to its b. Schlitz’s parcel original transfers as distributors are locat- some Moreover, contract. the short duration of performed has no ed in employment facility in each highlights the operations manufacturing processing or transient nature of Bliven’s September, since Missouri the fifteen months he worked outside Mis By souri. we hold that McClu recently Court has stated ney’s discharged 1956 contract was in 1970 plaintiff’s “post-occur- that a bona fide accepted pro he Schlitz’s offer of a change to the rence” of residence forum plant manager motion to of the Winston- contact that must be state is relevant was, Salem Plant. That 1970 contract like determining whether a forum’s assessed *6 wise, discharged McCluney accepted application its state law is constitutional- promotion presi Schlitz’s offer of a to vice Hague, Ins. Co. v. ly permissible. Allstate plant operations dent of in Wisconsin in supra, 101 at 643-644. The Court in 1975. The 1975 contract is twice removed however, Hague, reaffirmed the rule in original from the 1956 Missouri contract. Yates, John Hancock Mutual Life Ins. Co. v. Moreover, it is this twice removed contract supra, post-occurrence change that of resi- upon McCluney which bases his severance sufficient to create dence alone is not a claim; pay contract claim is six his “significant contact.” Allstate Ins. Co. v. salary corporate president months of a vice supra, Hague, 639 & 643. Wisconsin, plant manager’s in not the sala McCluney original hiring asserts that his ry City plant. for Schlitz’s defunct Kansas in Missouri in 1956 constitutes a simple origi fact that contact with the forum state. nally light hired in of his appellate relies a recent Missouri court subsequent employment history with decision that the service letter stat- Schlitz, controlling. is not This suit is not employment performed ute to an contract upon a contract. Missouri part in in in in Missouri and several then, period. In two-year other states over a In the instant case there Corp., only Bliven v. Brunswick one relevant contact between the Mis S.W.2d (Mo.App.1978), plaintiff the was hired souri forum and this transaction: McClu manage Corporation ney’s post-termination change the Brunswick of residence Gladstone, bowling alone, alley Standing Missouri. to that state. that is not employment, plaintiff permit the course of his the law sufficient Missouri to affect a bowling alley was transferred to a in New Wisconsin contract entered into between fully supports jury’s the evidence the which is to be residents and two Wisconsin party Neither performed liability.6 in Wisconsin. finding of expect that the Missouri reasonably could judgment below portion of That employment alter their letter statute would damages on the basis of the Mis- awarding Moreover, of Mis application contract. por- vacated. That service statute is souri arrangement law to an souri awarding damages for judgment tion of in Wisconsin consti contacts only which has party affirmed. Each breach of contract is of the interest Wis infringement tutes an bear its own costs. shall overseeing contractual ar consin has performed into and rangements entered boundaries. Accord its territorial within ARNOLD, Judge, concurring in Circuit judgment award
ingly,
portion
that
part.
dissenting in
part and
$400,001
under
Missouri
ing
for breach of
agree
I
must be vacated.5
service
But
I
should be affirmed.
because
application
of the Missouri ser-
believe
to this case would not
vice-letter statute
review of the trial
After careful
deprive
property
without due
transcript and the record of the district
law,
respectfully
dissent from
process
court,
we are convinced that
opinion.
Part II of the Court’s
properly
submitted to
contract claim
argument
central
is that
jury.
Hague,
In Allstate
Co.
was never
since the Creviston Memorandum
(1981), motorcycle
driven
a resi
Policy Manual and
formally recorded in its
was struck from behind
dent of Wisconsin
McCluney through
compa
never sent to
by another
resi
by an automobile driven
channels,
not form the
ny’s normal
it could
dent of Wisconsin.
accident occurred
suitable for
basis of a contract claim
Ralph Hague,
in Wisconsin.
also a resident
consideration.
passenger
and a
on the motor
of Wisconsin
record, however, clearly
shows that
cycle,
Hague’s
was killed.
widow sued All
the Creviston Memorandum was
fact
a contract of insurance which
state on
procedure
codification of the termination
delivered in Wisconsin. The
been
long established
that had been Schlitz’s
Court held that the
of Minneso
practice. The Creviston Memorandum was
question of
ta law to the
how to construe
approval
drafted with the consultation and
deprive
not
policy
the insurance
did
Allstate
president
vice
of industrial rela-
of Schlitz’s
property
without due
of law.1
tions,
brewery
indus-
and it was sent to
Hague had worked
Minnesota for 15
imple-
managers
relations
for them to
trial
*7
accident,
years before the
and commuted
supports McCluney’s
ment. The record
day
job
(though
each
to his
in that State
pay pol-
severance
company’s
claim that the
Hague
the accident did not occur while
was
throughout
place,
the work
icy was known
work).
commuting to
Allstate was at all
Memorandum itself
and that the Creviston
present
in Minne
times
business
among
personnel
was circulated
salaried
indeed,
Wisconsin).
(as,
Af
sota
was
brewery
relations
other than the
industrial
accident,
suit,
bringing
but before
ter the
managers.
correctly
court
sub-
The trial
jus-
pay
Hague
claim to the
Mrs.
moved to Minnesota. Four
mitted the severance
record,
ruling,
view
we need not and do
we are convinced that the
5. Based
our
arguments
correctly
objec-
re-
trial
overruled Schlitz’s
not address Schlitz’s alternative
lating
court
McCluney’s
to
service
tions.
claim.
1. The
that there
no
Court also held
was
viola-
rejected
considered and
6. We have
Clause,
tion of the Full Faith
Credit
admitting
regarding
arguments
the trial court’s
Const.,
IV,
1. Schlitz has not made a
Art.
testimony
alleged hearsay testimony and other
argument in this case.
full-faith-and-credit
proper
a careful re-
without
foundation. After
ployment
relationship
between
con
the view that
these three
took
tices2
sig
is much more relevant
sufficiently
and Missouri
were
with Minnesota
tacts
purposes
employ-
than the
Minnesota courts to
choice-of-law
allow the
to
nificant
violating
relationship
Hague
the ment
between
and Min-
without
their own law
apply
Stevens,
Hague’s
nothing
accident has
to do
Mr. Justice
nesota.
Constitution.
federal
and neither did his
thought
employment,
that with his
concurring
judgment,3
in the
policy. By
Min
the Missouri
move to
insurance
post-accident
plaintiff’s
“the
emp
statute,
by
as construed
Minnesota
service-letter
the decedent’s
nesota and
Missouri,
He
Court of
became
of
best
irrelevant.
were at
loyment”4
when he was
McCluney’s
employed
of Minneso
uphold
voted
challenge,
by Schlitz in Missouri
1956. See Cheek v.
due-process
against
law
ta
Co.,
however,
that outcome Prudential Life Ins.
S.W.
in his view
because
trial,
(Mo.1916),
expecta
aff’d after
the reasonable
did “not frustrate
nor cause
66 L.Ed.
contracting parties,”
tions of the
surprise
litigant.”
“unfair
conclusion that Missouri is
The Court’s
power
without
its statute to this
plurality
either of the
the criteria
Under
hinges
theory
concurring opinion of
case
on the
or the
Ste
opinion
contract,
original employment
under which
vens, J.,
relationship between Missouri
years,
in Missouri for 14
from
to me no more tenuous
he worked
and this case seems
ante,
“discharged,”
p.
relationship between Minnesota
1956 to
than the
cases there
Hague’s case.
In both
when he
and Mrs.
moved to North Carolina to
plant. With all
plaintiff manage
move of the
the Winston-Salem
post-occurrence
was a
deference,
argument
is it
this
seems to me rath-
In neither case
to the forum State.
artificial,
purpose
thing lawyers
er
the kind of
move was for the
claimed that the
fact,
than
up
or a
scholars think
after the
rather
particular
forum
securing
either
actually present
a consideration
in the
of law.
In both cases
particular
rule
decid-
business in the fo minds of the
corporate defendant did
accept
promotion.
times.
It is true
ed to
Schlitz’s offers
rum
at all relevant
State
manufacturing
aspects
or At least some
has done no
that Schlitz
relationship typically
employee’s
survive an
but it has
processing in Missouri since
city
by
to another
and sales and
transfer
one
continuously had distributors
corporate employer.
In this
in Missouri. There
nation-wide
marketing employees
case,
right
sev-
example, McCluney’s
is amenable to
can be no doubt that Schlitz
upholds,
Missouri,
pay, which the Court
al-
has never claimed to
erance
suit in
and it
pay
his rate of
in his last
though
based on
contrary, not in the Circuit Court
Wisconsin,
vice-presidency
position,
where this action
County,
Jackson
years
almost 20
in the Dis was also based on his
brought McCluney, not
company, most of which
Court,
removed the
service with the
trict
to which Schlitz
neither
case,
Probably
in Missouri.
place
And the em-
took
and not in this Court.7
ante,
Brennan,
concepts,
slip op.
joined
at 5-6. Some
the two
three other
2. Mr. Justice
Court,
opinion ap-
Hague plurality
announced the Court’s
observations in the
Members of the
“Here,
course,
plurality opinion.
jurisdiction
ply
and delivered the
here:
unquestioned, a factor not
Minnesota courts is
3.
Schlitz the respect appli with to continued tention to an which policy insurance construed to .it cability of the Missouri service-letter stat incorporate law New York as “a term of the ” to North Caroli ute when moved Here, . . . . on contrary, the any expectation I cannot of na. see how McCluney’s original agreement Schlitz’s and disappointed by holding would be Schlitz statute, included the Missouri and no later to be that the statute continued of agreement expressly arrange- modified that employment agreement. The the statute in have bargained ment. could with Schlitz applies “[wjhenever any employee terms of McCluney express for an choice-of-law any corporation business in this doing any potential clause to extinguish service- ...,” discharged voluntarily quit be shall or letter lack of liability. express such an (1975) (emphasis Mo.Ann.Stat. 290.140 § agreement choice-of-law has been referred supplied). Schlitz was business in to Supreme sup- the Court as a factor McCluney, Missouri both when it hired and porting a forum state’s choice of own its it be when fired him. It would fanciful to Office, Ltd., Clay law. Sun changed that contend Schlitz somehow 179, 182, 1197, 1198, L.Ed.2d potential to position, respect with future help feeling I cannot that this when liability, service-letter Court’s back day decision harks out of telling moved Missouri. most the federal were en- ready courts too to all, of so to fact far as fairness Schlitz is shrine proper their own notions of conflicts concerned, responded is that almost at rules in the Due Process Clause of the Four- once, murmur, and without a to McCluney’s teenth It may Amendment. be request for a letter under service Missouri (and that the Court cites no case I know claim Apparently law. the that Missouri Supreme Court) none in the more recent surprise law was no to Schlitz at than 1936 down striking a state’s choice of point. until company that It was not the law under the federal Constitution. sued, counsel, began consulted defenses, casting sum, In about for that I Schlitz as would affirm the District application serted that of Missouri law was Court’s the decision that Missouri service- unexpected fundamentally so as to be unf validly be may applied, and air.8 the judgment II of complaint, on Count the only but to the extent it awarded The Court discusses two cases in which damages nominal I bring $1.00. cannot the Court has invalidated a state’s myself $400,000.00 to the approve award of crucially choice of law. Both are different punitive damages on these facts. The Dick, from this ease. Ins. Co. v. Home letter, false, though service was not defam- L.Ed.2d 229 atory, published by nor was it to (1930), expressly the had contracted anyone plaintiff the except himself. law, the application Mexican but damages actual are covered attempted Texas courts had to apply Texas Count I. law. And in award John Hancock Ins. Co. v. punitive Yates, is so damages large it seems (1936), only product L.Ed. 106 to have been anger contact with rather of forum plaintiff’s post-occur- righteous was the than of properly indignation. residence, Thus, change rence the Court although I differ from the Court’s question hospitable (the have blacklisting concentrated on of unfair- no more evil against ness because Court does not to. which the service-letter di- statute is appear any rected) simply to contend would that there be real than is. It Missouri chooses ap- problem. By on Wisconsin’s interests encroachment plying different to attack method Hague Missouri law here. Wisconsin has no Minnesota and Wisconsin statute, prohibit directly service-letter it does opposite but rules of decisional law on employers acting deny issue, combination of question the insurance still it, persons seeking Wis.Stat. upheld. law Minnesota (West 1974). Ann. 134.02 Wisconsin is thus *9 one analysis, with all but legal agree of the result.
dollar DURHAM, Hilary Appellant, John Mandel, Louis, Atty. at Alan St. S. Mo., appellant. for
v. Ashcroft, Gen., M. Mor- Atty. John John WYRICK, Warden, Appellee. Donald Gen., Mo., ris, City, Atty. Asst. Jefferson 80-1465. No. appellee. of Appeals, United States Durham, Hilary pro John se. Eighth Circuit. ROSS, and Circuit Before BRIGHT 12, 1981. March Submitted HARRIS, District Judges, Senior Judge.* May Decided 1981. CURIAM.
PER appeals Hilary John Durham petition federal of his second denial We corpus habeas relief. affirm the denial grounds by on those which were addressed Magistrate adopted the United States We April on by district court remand, however, for a consid- reverse Durham’s asserted in ground eration one which was not addressed petition magistrate’s review and recommendation. procedural history of this case was magistrate as follows: by summarized petitioner December rape. with charged statutory arrested and prior felony The indictment recited seven had, however, convictions. Petitioner pardoned these convictions Oc- been Missou- by the Governor of tober reasons, re- petitioner For ri. various four he was ultimate- ceived trials before and sentenced ly convicted thirty-five impris- years judge the trial Missouri Habitual onment under (hereafter, Act). Sec- Criminal Act R.S.Mo., 556.280, 1959. This convic- tion appeal. State tion was affirmed Durham, (Mo.1967). 418 S.W.2d * Arkansas, sitting by designa- Harris, Districts of Senior United ern The Honorable Oren Judge and West- tion. for the Eastern States District