STATE of Missouri, Respondent, v. Charles D. McKINNEY, Appellant. STATE of Missouri, Respondent, v. Charles D. McKINNEY, Appellant. STATE of Missouri, Plaintiff-Respondent, v. TRADER BOB‘S, INC., Defendant-Appellant.
Nos. 69956 to 69958
Supreme Court of Missouri, En Banc.
July 26, 1988
Rehearing Denied Sept. 13, 1988.
756 S.W.2d 527
VII
The trial court‘s judgment as to appellant‘s counterclaim for specific performance of the settlement agreement is affirmed. The summary judgments in favor of appellant on the cross-claims of violation of the franchise law, breach of oral contract, and breach of fiduciary duty are affirmed. The judgments for fraud, breach of contract and conversion are reversed.
On the record before us, it is clear that either by reason of the terms of the employment contract or by reason of the transfers of the property during the never finalized settlement negotiations, there are items for which respondent is entitled to compensation. Under the contract, he is entitled to an accounting and payment for renewal commissions as they come due. Respondent is entitled to the reasonable value of his furniture less any payments made to either the seller or on financing paper secured by the furniture. Respondent is entitled to compensation for a percentage of the lease improvements paid by him equal to the percentage of the lease term taken over by appellant. The record is unclear, but if appellant or its employees in fact used the athletic tickets, then respondent is entitled to reimbursement for the athletic tickets.
The triаl court did not err in excluding evidence of respondent‘s alleged debts to appellant, no counterclaim having been filed therefore by appellant.
We believe under the authority of Zimmerman v. Associates Discount Corporation, 444 S.W.2d 396 (Mo. banc 1969) and Delay v. Douglas, 164 S.W.2d 154 (Mo.App. 1942), respondent, if he requests, would be entitled to file additional pleadings asserting a right to damages for these and similar items. In the event the trial court cannot assess these damages based on the existing record, or that such cannot be stipulated by the parties, then the trial court may in the alternative, order a new trial.
We reverse in part аnd affirm in part and remand with directions to assess damages and costs consistent with this opinion or in the alternative, order a new trial. If finally determined on the record, allowable interest and all costs should be assessed against appellant.
BILLINGS, C.J., and BLACKMAR, DONNELLY, ROBERTSON and HIGGINS, JJ., concur.
RENDLEN, J., concurs in result.
Kurt D. Schultz, Asst. Circuit Atty., George A. Peach, Circuit Atty. for the City of St. Louis, St. Louis, for respondent.
HIGGINS, Judge.
Charles D. McKinney was convicted in case No. 69956 of two counts of promoting pornography in the second degree in violation of
In Miller the United States Supreme Court set out a tripartite test to be used in the determinatiоn whether material is obscene. Id., 93 S.Ct. at 2615. The third part of the Miller test requires the fact finder to decide whether the material in question “taken as a whole” lacks serious literary, artistic, political or scientific value. Id.
In Pope, the court had to decide whether, in a prosecution for the sale of allegedly obscene materials, the jury may be instructed to apply community standards in deciding the value question contained in the third part of the Miller test. The court held that the value of an allegedly obscene work is not to be determined by reference to community standard, but by determina
The statutes provide:
573.010 . Chapter definitions.-As used in this chapter(1) “Pornographic“, any material or performance is “pornographic” if, considered as a whole, applying contemporary community standards:
(a) Its predominant appeal is to рrurient interest in sex; and
(b) It depicts or describes sexual conduct in a patiently offensive way; and
(c) It lacks serious literary, artistic, political or scientific value.
In determining whether any material or performance is pornographic, it shall be judged with reference to its impact upon ordinary adults;....
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573.030 . Promoting pornography in the second degree.-1. A person commits the crime of promoting pornography in the second degree if, knowing its content and character, he:(1) Promotes or possesses with the purpose to promote any pornоgraphic material for pecuniary gain; or
(2) Produces, presents, directs or participates in any pornographic performance for pecuniary gain.
2. Promoting pornography in the second degree is a class A misdemeanor.
The definition of “pornographic” and the offense of promoting pornography in the second degree have been repealed by the legislature.
(8) “Obscene“, any material or performance is obscene if:
(a) Applying contemporary community standards, its predominant appeal is to prurient interest in sex; and
(b) Taken as a whole with the average person, applying contemporary community standards, it depicts or describes sexual conduct in a patently offensive way; and
(c) Taken as a whole, it lacks serious literary, artistic, political or scientific value. Obscenity shall be judged with reference to its impact upon оrdinary adults;....
573.030 . Promoting obscenity in the second degree.-1. A person commits the crime of promoting pornography for minors or obscenity in the second degree if, knowing its content or character, he:(1) Promotes or possesses with the purpose to promote any obscene material for pecuniary gain; or
(2) Produces, presents, directs or participates in any obscene performance for pecuniary gain; or
(3) Promotes or possesses with the purpose to promote any material pornographic for minors for pecuniary gain; or
(4) Produces, presents, directs or participates in any performance pornographic for minors for pecuniary gain.
2. Promoting pornography for minors or obscenity in the second degree is a class A misdemeanor unless the person has pleaded guilty to or has been found guilty of an offense under this section committed at a different time, in which case it is a class D felony.
Appellants argue that under Pope the statute under which the convictions were obtained is unconstitutional on its face, therefore the convictions must be set aside. They also argue that because the statute is unconstitutional the harmless error doctrine, Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), is not applicable.
Here, as in Pope, the statute under which appellants were convicted is no longer in effect and has been replaced by a statute that no longer prescribes a community standard test for the value question. “Facial invalidity of the repealed statute would not serve the purpose of preventing
An information is jurisdictional in the sense that if it fails to charge a crime the court acquires no jurisdiction to proceed and whatever transpires after its filing is a nullity. State v. Brooks, 507 S.W.2d 375 (Mo.1974). No indictment or information shall be invalid, nor shall the trial judgment оr other proceedings thereon be stayed, however, because of any defect which does not prejudice the substantial rights of the defendant.
Appellants do not claim absence of notification of the crimes charged or that the information lacked definiteness and certainty. Appellants claim only that their convictions are void because the statute under which they were convicted contained a test which was held unconstitutional in Pope. In Pope the United States Supreme Court specifically addressed the proper standard to apply tо the value question and application of the harmless error doctrine. The constitutionality of the crime of pornography was not at issue. Appellants were charged and convicted of a crime that is still a crime under the new statute. The Supreme Court decision in Pope did not change this aspect of appellants’ cases.
A person may not be imprisoned for an act which is not in contravention of any existing law or an act which is held unconstitutional. Ex Parte Neet, 157 Mo. 527, 57 S.W. 1025 (1900); Osborne v. Owsley, 257 S.W.2d 691 (Mo.App.1953). Neither of these situations occurred in these cases. Appellants were convicted of a crime which was known at the time of commission and is a crime аt present. Appellants’ substantial rights were not violated at any time during the proceedings because they were put on notice of the crime charged; the indictments were reasonably understandable, definite and certain; appellants were represented by counsel; the cases were supervised by an impartial judge; and appellants had an opportunity to present evidence and argue in support of their innocence. Rose v. Clark, 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986);
In these circumstances, there is no reason to order retrials if it can be said beyond a reasonable doubt that the convictions in these cases were not affected by the erroneous wording of the statute. An otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond а reasonable doubt. Rose, 106 S.Ct. at 3105.
Accordingly, these appeals are retransferred to the Court of Appeals, Eastern District, for consideration of harmless error and any other of appellants’ points that may be ripe for review.
BILLINGS, C.J., and ROBERTSON and RENDLEN, JJ., concur.
DONNELLY, J., concurs in separate opinion filed.
WELLIVER, J., dissents in separate opinion filed.
BLACKMAR, J., dissents and concurs in separate dissenting oрinion of WELLIVER, J.
DONNELLY, Judge, concurring.
The issue of obscenity “has proved uniquely stubborn and resistant. *** Indeed, the idea of regulating obscenity by law while permitting case by case challenges in the courts sometimes seems like an invention of the Devil designed to embarrass and unhinge the legal system.” H. Kalven, A Worthy Tradition 34 (1988).
The issue оf obscenity remains relatively unaddressed outside the United States Supreme Court. This is unfortunate; but it is not happenstance.
In New State Ice Co. v. Liebmann, 285 U.S. 262, 311, 52 S.Ct. 371, 386-387, 76 L.Ed. 747 (1932) (Brandeis, J., dissenting), Justice Brandeis observed that denial of the right of the States to experiment “may be fraught with serious consequences to thе Nation. It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”
However, in Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5 (1958), the Court ignored thе wisdom of Brandeis and declared that its interpretations of the Constitution in a particular case in one State constitute the “supreme law of the land” under Article VI of the Constitution and are of binding effect in all of the States. In North Carolina v. Butler, 441 U.S. 369, 376, 99 S.Ct. 1755, 1759, 60 L.Ed.2d 286 (1979) the justices confirmed that the Cooper assertion must be “read for all its worth, as a statement that the Constitution is only and always what the Supreme Court says it is.” L. Tribe, American Constitutional Law 32 (1978).1
If free of the Cooper and Butler and Miller constraints, I would hold that the freedom to communicate obscenity to prior consenting adults is аbsolute but “would give recognition to an overriding concern where state interests of protecting children2 and unconsenting adults3 were involved.” State v. All Star News Agency, Inc., 580 S.W.2d 245, 248-249 (1979) (Donnelly, J., concurring). Cf. State v. Henry, 302 Or. 510, 732 P.2d 9 (1987).
I concur.
WELLIVER, Judge, dissenting.
I respectfully dissent.
I find no evidence that non-consenting adults or children were involved in these cases. Under
STATE of Missouri, Plaintiff-Respondent, v. Valerie COOLEY, Defendant-Appellant.
No. 69998.
Supreme Court of Missouri, En Banc.
July 26, 1988.
Errol Copilevitz, Richard E. Standridge, Kansas City, for defendant-appellant.
William J. Fleischaker, Pros. Atty., Joplin, for plaintiff-respondent.
ORDER
Valerie Cooley was convicted of promoting pornography in the second degree in violation of