*1 by indict- recharged the defendants first de- with murder ment or information COMPANY, DAILY RECORD d/b/a statute, murder) under the new gree (felony Printing Mid-America 565.003, additionally charged had not Petitioner, Company, separate count. underlying felony as a v. the same believed he deserved Appellant first- Revenue, only with JAMES, charged Ray treatment —to Director of S. charged and not to be Missouri, Respondent. degree felony murder State of robbery counts. retried, the trial to be count III were If before. exactly as it did proceed could Revenue, JAMES, Ray Director of S. should if, the trial court technically, Even Missouri, Petitioner, hearing as to preliminary have held a III”, is that the the fact “Amended Count by the failure COMPANY, prejudiced appellant was not Mid- DAILY d/b/a RECORD simply not warrant- and a retrial is Company, to do so Printing and The by appellant have been The cases cited ed. Commission of point The is overruled. considered. Missouri, Horn, C. Commission Michael er, Respondents. contends was Lastly, appellant No. 63245. statu proper to state the plain error to fail which each count of tory upon sections Missouri, Supreme Court was founded and that amended information Banc. En give failed to him the amended information offense in violation adequate notice of the March 1982. The amended as amended. of Rule 6, 1982. Rehearing April Denied cited the correct sections information trial. about three months before was filed point is overruled. judgment conviction and sentence robbery of attempted count I of

under reversed, judgments

Johnson is under both count

convictions and sentences III of robbery of Robinson and count

II of of Johnson are

first-degree (felony) murder

affirmed.

All concur.

the commercial printing business as Mid- Printing A Company. large per- centage (35%) of Mid-America’s income is printing derived from advertising supple- incorporation ments for and distribu- parts tion as newspapers.

A by business which chooses advertise to newspaper advertising means of a supple- may ment such a supplement printed have by by or newspaper, print- a commercial advantage er. The to an advertiser of a printer ability commercial is its to a high quality, attractive product great quantity. supple- If the advertiser has the printed by ment a printer, commercial printed is to the advertiser’s specifications and shipped by then to the newspapers which Kohn, Lueckenhoff, Alan Terry C. St. will incorporate and the supple- distribute Louis, petitioners. for ment. by The advertiser is billed Ashcroft, Gen., John Atty. Madeleine O. er for the printing charges by Birmingham, Gen., Atty. Asst. Jefferson newspapers advertising for charges. City, respondents. advertising supplements in the case Smith, Powell, Jay Robert C. William Co- before us were handled in manner. this If lumbia, for amicus curiae. the supplement printed is by the newspa- per, the supplement is to the adver- SEILER, Judge. tiser’s specifications. The advertiser is billed the newspaper printing for the 1978,1 Pursuant to Daily RSMo advertising charges. sales No tax is Company Record and the Director of Reve imposed on latter transaction. Publish- petitioned nue have both for review of a ers of newspapers and sellers are not sub- ject newspapers sales tax because are jurisdiction Commission. This court has be service, considered a to be nontaxable not a cause laws, construction of state revenue sale property. 144.030.3(7) 144.020.1and (currently §§ cod 10-3.110(1) (1981).2 C.S.R. 144.030.2(8), ified at Supp.1981), RSMo used in printing newspapers exempt from V, involved. Mo.Const. art. 3.§ sales 144.030.3(7). tax. Section The facts in this undisputed. case are Daily Company Record pub- a In the director of revenue assessed lishing corporation $238,110.33 engages which also sales tax of against Daily Ree- statutory 1. All references are RSMo 1978 In order to constitute a publication unless indicated otherwise. must contain at least the follow- ing published it elements: must be at stated engaged 2. Publishers not intervals, are usually daily weekly; short or tangible selling personal the property business not, put must its successive issues are providing are but dissemination together, book; constitute it must be in- general public resulting of news to the in a gen- tended for dissemination of news to the subject service not selling newspapers to the sales tax. Persons public; gener- eral it must contain matters basis, subscription on a events; reports al interest and of current newsstand, otherwise, or not generally it must be in sheet form. sales tax. 10-3.112(1) (1981). 12 C.S.R. 10-3.110(1)(1981). 12C.S.R. Department A is defined Revenue as follows: produce, purchase on the of the finished tax purchase price ord on equal tax percentage of that Mid-Ameri- less a supplements which component in Schnucks, Barr, ‘newsprint’ percentage of Famous printed for ca had provided that the fin- 1976, 1977, product, the finished and 1978.3 Venture stores (advertising supplement) product ished sales tax on had not collected Mid-America newspaper.” incorporated into supplements be- later of these printing costs claimed entitle- cause the advertisers re- petitions this court for Daily Record *3 Mid- exemption. the ment view, contending on statutorial and consti- however, tax on did, collect sales erro- grounds that the Commission tutional which were materials advertising 144.020.1 interpreted applied and neously § newspapers. Daily into not to be inserted concluding any part that of the sales in Hear- petitioned the Administrative Record advertising is a sale of the price of the director’s for review ing Commission property. The director tangible personal of the ad- by taxing contending that argues review petition in his of revenue had im- the director vertising supplements is erro- that the decision Commission 144.020.1, pro- which interpreted properly advertising supple- holding § in that an neous newspaper and part:. integral part vides ment is an exemption the thus entitled to upon imposed hereby levied and A tax is 144.030.3(7). In his brief authorized § engaging in privilege of sellers for the all the director conceded argument, in oral and selling of the business an advertising supplement if the at rendering taxable service property or newspaper, it is not sub- integral part of a state. retail in this to the news- sales tax and is entitled ject to Hearing Commission The Administrative Therefore, resolution of exemption. part the and reversed affirmed in determining whether an requires this case con- The Commission director’s decision. “newspaper.” is a advertising supplement an supplement is advertising an cluded that But, it also newspaper. integral part of the of the Administrative A decision two transactions upheld there were “shall be found that Commission by compe advertising supplement supported law and when the authorized upon “In the first the printer. substantial evidence by a commercial tent and ed record, approval the or transaction, purchases . .. and if the the advertiser whole Petitioner; authority in in the second the exercise of disapproval of supplements from hearing com supple- by the administrative transaction, question the Petitioner delivers or results not create a result to mission does newspaper for distribution ments to the the court contrary to that which clearly transaction public. The first general expections of were the reasonable concludes second transac- liability; results in tax time such au assembly at the general The Commis- tion is a nontaxable service.” agency.” Sec- delegated to thority was pay sales “Petitioner should sion held that advertising printers circu- 1978, Publishers or of had not of revenue the director 3. Prior to lars, brochures, pub- pamphlets printers or other and attempted tax from the to collect sales gratis advertising supplements. these or De- who distribute lished matter of Revenue, (revised persons, are partment 72 as of or other Rule to customers otherwise 13, 1972) interpreted gross receipts August 144.020.1 to the sales tax on part as follows: such sales. from all replaced by 10-3.- 12 C.S.R. advertising This was in turn publications, of trade Purchasers 1, 1981), (effective January (1981) circulars, 114 pamphlets which who dis- and brochures po- consistently interprets with the 144.020.1 gratis to customers or otherwise tribute same urging required in the instant case. persons, to remit sales sition the director are or other are sub- printers materials in turn are Publishers of who tax to the receipts payment gross ject of Mis- for the the sales tax on to the director liable publications whether tax. all such souri sales/use from the sale of replaced by 10-3.342 12 C.S.R. or other- Rule 72 was to be inserted sold 30, 1976, (effective December rescinded March wise. 11, provided part: 1980) which

351 parties argue vertising, comment, tion Both political prob- 161.338. chess lems, incorrectly interpreted ap- puzzles, commission cross are word what called plied (and very deci- agency law. Administrative often lamentable inaccu- comics, agency’s interpretation special sions based on the racy) features of un- ending independent variety. law “are matters for sum total is known court, judgment reviewing cor- newspaper, generally regarded as a County rection where erroneous.” St. Louis such. . .. Enormous as amounts ad- Commission, 334, vertising State Tax 562 main S.W.2d source revenue (Mo. 1978). dailies, 337-38 banc weeklies and monthlies.. .. melange ofAll is contained in The identical an question, whether special what are known as sections advertising supplement a “newspaper”, . . . paper. Each section is thus an inte- Sears, was raised in Roebuck & Co. v. part of gral made so not Commission, Tax 345 N.E.2d Mass. it physically because folded in a news Sears, (1976). taxpayer In been section, but *4 because has assumed the advertising supple assessed use taxes on journal character of the of which it is a prepared by ments which had been commer . part; . . printers cial for newspapers. insertion into Id. at 991-92. court, The holding Massachusetts such that supplements parts were newspapers of not The Administrative Commission subject taxes, to sales or use the reversed reaching in its decision had found two statute, By tax board. Mass.Gen.Laws transactions, the first which was taxable. 64H, 6(m) (West 1978), Ann. ch. sales of § A similar in contention discussed Fried- newspapers exempt from sales tax. Express. man’s There the court stated purchaser The exempt property of sales tax that, although the comic section was enjoys the same exemption from the use separately, part ed it was a newspa- 7(b) tax. Mass.Gen.Laws Ann. ch. § per printed. from the time was is “[I]t (West 1978). The tax board had found that yet placed physical not contiquity in if similar supplements had been parts go the rest its to fellow that make published the which newspaper distribut up intelligencer. the modern It has no them, ed taxpayer the not would have been own, character its nor is it intended for subject use to the tax. The court Sears separate sale the the from balance of news- the the supplements concluded that fact print journal.” with which up it makes “were printed newspa not Id. at 992. The same can be said of the pers change does not the result.” Id. 345 newspaper advertising supplement. The N.E.2d at 895. advertiser orders the supplement solely to incorporated a newspaper. That The Massachusetts court relied on the supplement has no character of its own. description a in newspaper Friedman’s newspaper The advertising supplement is Express, Co., Transportation Inc. Mirror printed. In actu- (D.N.J.1947), aff’d, 71 F.2d F.Supp. 991 169 there one ality, is but continuous transac- (3d 1948). 504 In Friedman's Express, Cir. tion. the issue was whether motor carriers used transport to comic printer sections from the The conclusion of Massachusetts court were to entitled the Inter- in Roebuck & Co. v. Tax Com- Sears exemption state Act motor Commerce for mission, supra, although statute, based on a vehicles for exclusively “used distribution equally is sound in this case. Missouri’s court, holding The in that newspapers.” statute, 144.020.1, long sales tax has been § newspa- exemption applied, defined a interpreted apply not to to per: news, which disseminate a nontaxable ser- present-day advertising supplement,

The in addition vice. An which is carrying general printed solely to “items of inter- a newspa- news to be inserted into est”, and, quantities fact, per contains enormous of ad- distributed the news- is $1,000 10,000 print advertis- printer to that integral part of paper, is an consisting pages of four each. ing pieces is entitled to it is from the time paid the them and is printer prints The sales tax as is exemption from the the same $1,000. is whether the mer- question newspaper. Further- the remainder pay printer required chant more, such ad- newsprint used tax under § sales exempt. tax Sec- vertising supplement the merchant. to collect it from required 144.030.3(7). tion forego- affording the There is no statute Hear- The decision of from the any exemption ing transaction there are two transac- ing Commission newspaper to a The sale of a sales tax. taxable, is re- tions, which is the first of held to be not the sale customer has been versed. property but rather exempt said printing used in “service”, taxable therefore not a sales The cause is taxation is affirmed. from Furthermore, sale of transaction. consistent with proceedings remanded is an printing newspapers newsprint used opinion. 144.030.3(7), transaction under exempt 144.030.2(8), (now Cum. RSMo RSMo WELLIVER, J., DONNELLY, C. Supp.1981). HIGGINS, JJ., concur. MORGAN if the merchant previous example In the J., RENDLEN, dissents. 10,000 advertising pieces and his receives BARDGETT, J., separate dissents store, uses them in his distributes them or opinion filed. admittedly the transaction But, if the merchant has sales tax. *5 BARDGETT, Judge, dissenting. to a advertising pieces delivered dissent. respectfully I the transac- paper, with the then to be sold an advertis- that whether I am uncertain the merchant and tion between of its own” has a “character ing supplement though even the news- nontaxable becomes but, in any case all decisive of this is at at party to that transaction paper is not contrary in the event, the statement course, pay will the merchant all. Of is incorrect. The advertis- opinion principal advertising, carrying his but newspaper for petitioner which printed by ing supplements involved in this is not the transaction newspapers were used used in were not case. merchant— advertising customer —the the Administrative I believe pieces in the customer’s as was correct and should Commission’s order argument, in oral This was stated store. relevant affirmed. The commission’s unusual. parties, and is not agreed all page on finding and conclusion are set forth “advertising sup- that an I have no doubt deter- opinion. That principal 350 of the integral part of the an plement” becomes the news- exempts the value of mination as into and sold newspaper when folded news- the taxable sale because print from Nevertheless, so newspaper. specifically ex- print used the news- printing, but the ink used does tax, requires the tax from sales but it empt purchases when it pay sales tax paper must remaining sum due from on the paid to be go into the other items that and some ink printer. taxable the merchant makeup newspaper. the merchant was the sale between event statutory ex- news- there is no Daily printer; Record is a that the The fact af- transaction. I would emption no conse- company is of publishing paper the decision of the commission. case, stipu- firm that also quence in this argument. The business during oral lated does not sought to be taxed

transaction the transaction newspaper;

even involve printer. and a the merchant

is between agrees pay merchant example, the

For