State v. Smith

422 S.W.2d 50, 1967 Mo. LEXIS 745

Opinions

HOUSER, Commissioner.

Rollin Eugene Smith, a clerk in a bookstore on McPherson Avenue in St. Louis, has appealed from a workhouse sentence of 30 days and a fine of $500 imposed upon him following a jury verdict of guilty of possessing obscene matter (the book “Candy”) with intent to sell, in violation of § 563.280, V.A.M.S.¹

We have jurisdiction of this appeal, notwithstanding it is a misdemeanor case, because the construction of the state and federal constitutions is necessary to its determination. Constitution of Missouri, 1945, Art. V, § 3, V.A.M.S.

On March 31, 1965 police detective Edwin Kuster entered the bookstore and purchased from defendant a paperback version of Candy, published by Brandon House. Asked if he was familiar with the book defendant answered that he had read it and found it very amusing. The detective left the store, returning shortly thereafter with another detective. The officers placed defendant under arrest. He was then asked if there were other copies of the book in the store. Answering in the affirmative he showed the detectives where they were. The detectives confiscated 8 additional copies of the book.

Appellant relies upon twelve points of error.

NON-OBSCENITY AS A MATTER OF LAW?

Appellant urges that the court erred in not ruling as a matter of law that Candy is not obscene and is constitutionally protected under state and federal constitutional provisions relating to freedom of speech and of the press and due process of law.²

“The right of free speech is not an absolute right at all times and under all circumstances.” The right of freedom of speech “is subject to the state’s right to exercise its inherent police power.” State v. Becker, 364 Mo. 1079, 272 S.W.2d 283, 288, 289. “[O]bscenity is not within the area of constitutionally protected speech or press.” Roth v. United States, 354 U.S. 476, 485, 77 S.Ct. 1304, 1309, 1 L.Ed.2d 1498, followed in State v. Vollmar, Mo.Sup., 389 S.W.2d 20, 27. The Supreme Court of the United States accepts it as a postulate that “ ‘the primary requirements of decency may be enforced against obscene publications.’ ” Kingsley Books, Inc. v. Brown, 354 U.S. 436, 440, 77 S.Ct. 1325, 1327, 1 L.Ed.2d 1469.

The constitutional issue having been raised, it is our duty to reach an independent judgment on the mixed question of law and fact whether Candy is obscene. State v. Vollmar, supra, 389 S.W.2d, 1. c. 27, 28 [18].³ A definition of the term “obscenity” is a prerequisite. In 1965 this Court in Vollmar, following the 1957 opinion of the Supreme Court of the United States in Roth v. United States, supra, applied the definition of obscenity concurred in by a majority of the justices of that Court, namely, that “Obscene material is material which deals with sex in a manner appealing to prurient interest” and applied the test approved therein, “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.” In subsequent decisions individual judges or several but less than a majority of the Court have expressed views which, if eventually adopted by a majority of the Court, will add further refinements and qualifications to the Roth definition. “Two members of the Court have consistently adhered to the view that a State is utterly without power to suppress, control or punish the distribution of any writings or pictures upon the ground of their ‘obscenity.’ [Ginzburg v. United States, 383 U.S. 463, 476, 482, 86 S.Ct. 942, 950, 953, 16 L.Ed.2d 31 (dissenting opinions); Jacobellis v. State of Ohio, 378 U.S. 184, 196, 84 S.Ct. 1676, 1682 (concurring opinion); Roth v. United States, 354 U.S. 476, 508, 77 S.Ct. 1304, 1321 (dissenting opinion).] A third has held to the opinion that a State’s power in this area is narrowly limited to a distinct and clearly identifiable class of material. [Ginzburg v. United States, 383 U.S. 463, 499, and n. 3, 86 S.Ct. 942, 956 (dissenting opinion), referring to hardcore pornography.] Others have subscribed to a not dissimilar standard, holding that a State may not constitutionally inhibit the distribution of literary material as obscene unless ‘(a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relat ing to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value/ emphasizing that the ‘three elements must coalesce/ and that no such material can ‘be proscribed unless it is found to be utterly without redeeming social value/ A Book Named ‘John Clelands’ Memoirs of a Woman of Pleasure’ v. Attorney General of Com. of Massachusetts, 383 U.S. 413, 418-419, 86 S.Ct. 975, 977-978 [16 L.Ed.2d 1], Another Justice has not viewed the ‘social value’ element as an independent factor in the judgment of obscenity. Id., at 460-462, 86 S.Ct. 975, 998-999 (dissenting opinion).” Quotation from Per Curiam opinion of the Supreme Court of the United States" in Redrup v. New York, May 8, 1967, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515.

While on matters involving the construction of the federal constitution the controlling decisions of the United States Supreme Court must be followed, this Court is not required to apply every test devised by each of the nine justices. Our duty in this respect is discharged when we apply the test on which the Court has spoken with the authoritative voice of a majority. In the case of Candy, however, it is a matter of no consequence whether we restrict our consideration to the test of Roth, or go further and apply the “patently offensive” test or the “social value” test. Under neither of the three tests is Candy entitled, as a matter of law, to constitutional protection. Under all three of the tests the conclusion is impelled, by a reading of the book, that we cannot say as a matter of law that Candy does not make a strong, urgent and demoralizing appeal to prurient interest in sex; or that the material is not an affront to contemporary community standards relating to the description or representation of sexual matters and therefore is not patently offensive; and that the material is not utterly without redeeming social value.

Considering the book as a whole, and not by one or a few isolated words, phrases, paragraphs or chapters, from the standpoint of the average person, applying contemporary community standards,⁴ we cannot conscientiously say as a matter of law that the dominant theme of the material does not appeal to prurient interest in sex. It begins, mildly, with a professor pretending to drop his lecture notes, and, in retrieving them, showing his backside to the class, “which laughed appreciatively.” It ends, disgustingly, with Candy standing before a Buddhist statue, meditating on the tip of its nose. Struck by lightning, the statue falls half burying Candy and a dung-covered “holy man,” who are thrown together, with Candy’s shift forced above her waist and her shapely bare legs locked about the holy man’s loins in such juxtaposition that he has an erection and his “taut member” eases into her “tight little lamb-pit.” She is pinioned in that position by the slipping of the statue into such a position that the tip of its nose slips into Candy’s “marvellous derriere.” She relaxes and begins to enjoy both penetrations when she suddenly realizes that the “holy man” is her father. In between these two rectal ruminations there are, in the paperback edition, 189 pages of salacious smut. Reasonable minds could find that Candy is an episodic account of rotten erotica; a sick saga of sex; a series of sensational sex encounters connected by a thin tissue of so-called “plot” which serves as the excuse to hold it together. The beginning chapters set the dominant theme of the book, which a jury could find is a direct appeal to prurient interest in sex, namely, that for a delightfully appealing young girl with every physical attraction to give herself fully to the satisfaction of the sexual needs of every male with whom she comes in contact is not only a duty but a beautiful and thrilling privilege. This theme is introduced in the setting of an attempt at seduction by Candy’s professor, whose blandishments bring her to the yielding point when they are interrupted by a male student. The professor and the boy go into an adjoining room where Candy later finds them naked, dancing about wildly, flailing each other with wet towels, “Moaning and sobbing, their bodies reddened and welted.” Next, Candy takes the initiative and arranges to satisfy the gardener’s sexual needs in a sultry and highly provocative bedroom scene. Final consummation of the sex act (the “terrible thrust to the hilt”) is interrupted by Candy’s father, who attacks the gardener. The latter nearly brains him with a trowel. At the hospital, under her father’s bed, Candy takes care of her Uncle Jack’s sexual needs until interrupted by a nurse, who in turn is ravished in a tumultuous melee. Preceding their trip to the hospital a series of conversations with Candy’s Aunt Livia are related. This particular account is unleavened obscenity of the most degrading nature. This bit of immoral writing is interlaced with and adorned by every conceivable four-letter Anglo-Saxon word of the level of the sewer. At this point in the book the subject of masturbation is treated by introducing a young doctor who advocates masturbation as the only sex mode that permits complete fulfillment and mental health, and blames heterosexual lovemaking as the root of all neuroses. Candy faints in a doctor’s office and is stripped of her clothing. What could be denominated the dominant theme of sexuality is pursued via a cunning description of the digital exploration of the nude girl, followed by the sticking of numerous pins in her buttocks. Next, Candy’s Aunt Livia, a beautiful woman, is portrayed, naked and unconscious, strapped to an operating table. The doctor, sitting in a chair, sticks numerous pins in her buttocks, while he briskly abuses himself sexually until he screams triumphantly, dropping to the floor to lie “utterly spent, face down and apparently unconscious.” Candy goes to New York. There she encounters a hunchback who is agitating his hump against a tree on a street corner. She invites him to her apartment where she plies him with food, drink and sex in the form of minutely described, franker-than-frank perversion, followed by sadomasochistic beating and flagellation, ending with a revolting scene in which Candy in a transport of passion madly tries to get the hunchback’s hump into her labias. The scene shifts to a bar where a bartender tells of the gamut of emotions which crossed the face of a “hefty babe” seated on a barstool as she gradually sank down toward the floor while the stool and “about a foot of the legs of the stool” slipped or pushed “right up into her thing.” Now comes a gynecologist who meets Candy in a New York bar and takes her to the men’s room for an “examination,” which turns out to be a massage of her clitoris, followed by an act of perversion which he practices upon her. On the way to the police station one of the officers in the police car tears open his fly and forces Candy’s hand inside his trousers. The police car, swerving to avoid a truck, runs into a bar in which there are 250 homosexuals. A stranger, helping her escape from the authorities, takes her to a camp of Utopians in Minnesota, where in an atmosphere of “spiritualism” she is taught “Cosmic Rhythm,” among other things. There she engages in erotic scenes of sexual intercourse. The descriptions are graphic and detailed. The male and female parts, the preparation and approach, the act and the orgasm are all written in a manner obviously calculated to arouse lascivious longing and to excite lecherous desire. Bounced off to Calcutta when she becomes pregnant, Candy receives letters the contents of which appear to constitute hardcore pornography in its most vulgar form. She flies to Tibet, where the Buddhist idol affair climaxes the book, which ends with the words: “GOOD GRIEF, IT’S DADDY!”

The prurient interest test

Roth defined prurient as “itching; longing; uneasy with desire or longing; of persons, having itching, morbid, or lascivious longings; of desire; curiosity, or propensity, lewd. * * * ” Roth also referred to the Model Penal Code statement that a thing is obscene “if, considered as a whole, its predominant appeal is to prurient interest, i. e., a shameful or morbid interest in nudity, sex, or excretion, and if it goes substantially beyond customary limits of candor in description or representation of such matters. * * * ”⁵ This book engagingly describes this “precious,” “darling” girl with “exquisitely warm round thighs,” and gives exotic closeups of her personal responses to sexual stimuli, her seductions, acts of intercourse, orgasms and her feelings during these experiences. Her private parts are described in loving, affectionate language. Special attention is given to her clitoris, which is frequently called by its right name but sometimes referred to by the more familiar diminutive “clit,” and its manual massage by the several men with whom she is thrown. The flyleaf of the paperback edition describes the book as scandalous, shocking, and the “bawdiest book of this era,” which has “the critics raving and the censors roaring.” Vividly portrayed scenes are wittily written for the transparent purpose of arousing the passions appealing to the physical appetite, stimulating sexual desire and titillating sexual response in the reader. A jury could find that the dominant theme, indeed the flesh, arteries, blood and backbone of this book is an appeal to prurient interest in sex. The average person reading the erotic and sensual descriptions of the sexual life of this beautiful young creature will be filled with “uneasy desire,” “lascivious longings” and a “shameful interest in nudity and sex.”

Appellant points out that the state introduced no evidence that the appeal of Candy was to the prurient interest in sex, whereas appellant called numerous expert witnesses ⁶ who indicated that they did not consider that this is the appeal of Candy; who found Candy acceptable by “contemporary community standards.” The teacher with an M.A. degree felt that the prurient effect gained by suggestion in a pornographic work is immediately destroyed as soon as humor enters in, and that Candy is a funny book and not obscene. He was prepared to say that distribution of Candy to young people would be “healthful.” A Catholic priest who had not read the book opined that sex matters can be spoofed without appealing to the prurient interest and that the purpose of prurient writing is to inflame a man or woman to have impure thoughts. The psychiatrist considered that the book does not violate the accepted national standard of sex and morals. The anthropologist-sociologist said that Candy is well within the national contemporary community standards of conduct and morality; that the average person could have no adverse effect after reading Candy.

Expert testimony that a publication conforms to general community standards and is not obscene is not within the proper scope of expert testimony. State v. Vollmar, supra, 389 S.W.2d 29 [25]; State v. Becker, supra. In Vollmar it was reasoned that judges and jurors have knowledge concerning the general community standards relating to moral conduct and obscenity; and that in the field of obscenity the average citizen is as capable of judging a publication “as an alleged expert.” In assessing whether a publication is obscene or whether it conforms to contemporary community standards of decency ánd morality the courts are concerned with the dominant theme as it appears to the average person — not as it may be consid ered by the small segment of the population represented by the “experts” who testified for appellant — -sophisticated, cultivated, highly educated, widely traveled and worldly-wise members of the intelligentsia whose judgment as to the reactions of the average person who reads Candy is of questionable, if any, value. This book may appeal to the intellectual elite on an intellectual plane. The erudite and sophisticated may be cultivated to the point where they are not affected by erotica or may be impervious to the storms of aroused passion. We are confident, however, that the average person is not so finely tuned or so smugly insulated.

New Jersey considers the testimony of experts as appropriate in the area of contemporary community standards and customary limits of candor. G. P. Putnam’s Sons v. Calissi, 86 N.J.Super. 82, (1964) 205 A.2d 913 [3]. Even there, however, the danger of blindly accepting the conclusion of the expert in this area of law is pointed out. The following quotation from People v. Fritch, 13 N.Y.2d 119, 243 N.Y.S.2d 1, 192 N.E.2d 713, by the New York Court of Appeals (1963), approved by the New Jersey Superior Court, represents our views on this question:

“It does not follow * * * that because an alleged work of literature does not appeal to the prurient interest of a small group of intellectuals that it is not obscene under the prurient interest, or for that matter any other legal test of obscenity. This would permit the substitution of the opinions of authors and critics for those of the average person in the contemporary community. The fact that a few literary figures have commented favorably on this book and have lent it their prestige does not expunge from its pages the flagrantly obscene and patently offensive matter which dominates the book as a whole.

“A book may not be judged by its cover, its introduction or the laudatory comments contained in the publisher’s blurbs— rather it must be judged by its actual contents. It requires little perception or imagination to conceive that the actual contents of a book may completely negate these testimonials and indorsements. Nor does the fact that the author enjoys wide acclaim as a writer control, for the book must be judged, not by the reputation of the author, but by what he writes in it. To hold otherwise would give recognized writers the freedom to traffic in obscenity at will under the guise of creating a work of art. This court will not adopt a rule of law which states that obscenity is suppressible but that well-written obscenity is not.”

The patently offensive test

A jury could find that unadulterated smut, fornication, masturbation, flagellation, perversion, sodomy and incest, sprinkled throughout with obscene and profane gutter words, well-laced throughout with lust and shockingly frank word pictures of the private parts of men and women; vividly portrayed scenes of an obscene, repulsive, loathsome, grotesque and bizarre nature, wittily contrived for the obvious purpose of administering a shock to the reader, are “so offensive on their face as to affront current community standards of decency,” which is the definition of patent offensiveness given in Manual Enterprises, Inc. v. Day, 370 U.S. 478, 82 S.Ct. 1432, 8 L.Ed. 2d 639. Appellant contends for a clean bill of health for Candy on the ground that other books as bad or worse have been adjudged not obscene by the courts. He cites “Tropic of Cancer,” “Lady Chatterly’s Lover,” and “Fanny Hill,” as examples of books which have received the stamp of approval by federal courts. (We are cited to no controlling decision which holds as a matter of law that Candy is not obscene, and we have found none.) As indicated in Jacobellis, supra, the ultimate decisions in obscenity cases must be made on a case-to-case basis. It must be recognized that no two books are alike. Each must be judged on its own merits or demerits. We cannot decide the issue before us by comparing Candy with some other book. The test is not whether Candy is less objectionable than Fanny Hill, et al. The test is whether as a matter of law Candy is nonobscene. Ours must be an independent determination as to the propriety of Candy under the governing rules. We must adhere to our own judgment of Candy rather than rely upon the judgment of other judges passing on other books.

In his claim that the book does not go beyond the customary limits of candor in description or representation appellant, conceding that Candy has “some vivid descriptions,” seeks justification on the ground that the book would have had a completely different meaning without the candor; that it was “absolutely necessary” to the development of the author’s theme. He excuses the use of “certain four-letter words” on the ground that their use is a “necessary technique in the development of the author’s satirical thesis.” Material that ordinarily would be classed as obscene does not go through a filter and come out “smelling like a rose” simply because the author takes the material and grossly exaggerates and distorts it out of all reasonable proportion, or presents it in an unusually and outlandishly abhorrent manner. We cannot subscribe to a rule that obscenity is bad but that massive obscenity to the nth degree is permissible.

The social value test

While as indicated only three of the justices have laid this down as a requirement we will weigh Candy in the light of the pronouncement of Brennan, J., in a book named “John Cleland’s Memoirs of a Woman of Pleasure” v. Attorney General of the Com. of Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1, that a book cannot be proscribed unless it is found to be utterly without redeeming social value; that this is so even though it has prurient appeal and is patently offensive, and that each of these three criteria must be applied independently.

Appellant urges that the following evidences the social value of Candy: that it has been given open and widespread distribution; that six months before defendant’s arrest 112,000 copies had been sold; that it headed the best seller list for many weeks; that critics have acclaimed it;⁷ that the United States Attorney General ruled that it was not a proper subject for federal prosecution; and that the book was said to have social value by the literati who testified in this case. The testimony of the latter, distilled, was that Candy is a work of literary art; that it tells a story in an accepted literary sense and has wit and contemporary literary value; that it is a good book, an important book, a healthy antidote to other kinds of literature available to society; a very healthy addition to the standards of morality; that they had recommended it to friends and colleagues and to college students with the statement that they might get some enjoyment out of it; that there is no relationship between the book and sexual crimes or acts of sexual perversion. They consider that it is a satiric attack upon currently held notions or attitudes toward sex found in modern society as reflected in some contemporary writing; that it holds up to ridicule certain sexual attitudes that people have and “the contemporary attitude of the softheaded liberal”; that it spoofs, ridicules and lampoons distorted views of sex, portraying what is thought to be love but which is not; that by employing satiric exaggeration and grotesque puffing up of sex the author “attacks false idealization of certain attitudes towards sex which are to be found in modern society” ; that it is a humorous book, “a very funny book,” a subtle and hilarious satire on sex and attitudes toward sex. The experts compared Candy with the works of Chaucer, Shakespeare, Rabelais, Swift, and on the contemporary scene, D. H. Lawrence and Henry Miller. A Presbyterian minister compared Candy with the gospels, claiming that Candy uses the same style of approach in spoofing immorality as Jesus did in laughing at the people of his time and their social pride.

In our judgment reasonable minds could differ on the question whether Candy has any redemptive artistic, literary, social or scientific value. The explanations of the experts in their efforts to substantiate their conclusions to the contrary are vague, intangible, and convey nothing meaningful. If Candy “tells a story in an accepted literary sense” it can be viewed as a story of sensuality and wild abandon to sexual impulse and the pleasures of passion. If it is a work of art it might be regarded as a work of art in evoking titillating sexual response. Those who would hold this publication not obscene as a matter of law on the ground that it is socially valuable as a satire on currently held notions of sex may do so on the ground that it rebukes and criticizes an evil and therefore tends to bring about an improvement in the evil condition.⁸ If the saving grace of this book is the salvation of its readers from exaggerated ideas about sex its methodology is inconsistent with and foreign to its objective. The accentuation of prurient appeal by exaggeration imparts no social value to pornography.

In our opinion black is black and when it appears before your eyes it cannot be converted into white by saying so, no matter how many say so or who they may be. The plain truth is that Candy communicates nothing of value. The constant repetition of one sensual scene after another and the liberal use of lascivious and provocative language transmits no social theme of significance or worth. We agree with the Attorney General of Missouri that the story does not purport to advocate any idea of redeeming social value; that there is no serious effort to portray the reality of cultural or social conditions of even the most neurotic or sordid portion of the population (Judge Wyzanski’s comment in declaring Lust Job obscene, in Books, Inc. v. United States, 5 Cir., 358 F.2d 935, 936) ; that no development of character in any meaningful way is attempted nor has the author attempted any character insight that might be valuable to the reader; that no moral is shown. A jury could find that its effect on society as a whole and on the average person in society can only be deleterious and harmful.

Candy is a satire; concededly there are appeals to the sense of humor through gross exaggeration and grotesque distortion. Generally it is well-written and in places witty. But obscenity is still obscene, notwithstanding it is humorous, well-written, witty and in form satiric. Obscenity does not go through a purifying metamorphosis by being presented in a certain literary form or style or by injecting humor into the narrative. We endorse the views expressed in People v. Bookcase, Inc., 40 Misc.2d 796, 244 N.Y.S.2d 297, 300:

“Filth, even if wrapped in the finest packaging, is still filth. ‘Charm of language, subtlety of thought, faultless style, even distinction of authorship, may all * * * be present and the book be unfit for dissemination to the reading public. ******* ‘This court will not adopt a rule of law which states that obscenity is suppressible but that well-written obscenity is not.’ ”

Justice Clark, in his dissenting opinion in a book named “John Cleland’s Memoirs of a Woman of Pleasure” v. Attorney General of the Com. of Massachusetts, supra, put it this way, 383 U.S., 1. c. 450, 86 S.Ct. 1. c. 993:

“If a book deals solely with erotic material in a manner calculated to appeal to the prurient interest, it matters not that it may be expressed in beautiful prose. There are obviously dynamic connections between art and sex — the emotional, intellectual, and physical — but where the former is used solely to promote prurient appeal, it cannot claim constitutional immunity.”

The fact that this book sold like hotcakes and led the best seller list for weeks does not prove it has social value but comes closer to proving that there is in this country a ready market for pornography and that morbid interest in sex is being commercially exploited.

Nor does the acclaim of a few critics establish its social worth or purge from its pages the obscenity and shockingly offensive matter with which it is permeated. People v. Fritch, supra.

In our considered judgment we cannot declare as a matter of law that Candy is not obscene, because it is plain that any jury could find that it is obscene, under all three of the proposed tests.

SCIENTER?

Conceding that the state showed that he read the book, appellant contends that scienter was not sufficiently shown because the state failed to prove that he knew that the contents of the hook were obscene. Appellant cites no case so holding. The adjudicated cases are to the contrary. In Vollmar, supra, we held that possession of some knowledge of the nature of the contents of the publication was sufficient to constitute scienter. In People v. Harris, 192 Cal.App.2d Supp. 887, 13 Cal.Rptr. 642, 645 [5], it was held that proof of scienter “does not mean that the People must prove that the defendant considered the books obscene. Scienter is knowledge of the contents of the books [citing Smith v. California, infra].” People v. Williamson, 207 Cal.App.2d 839, 24 Cal.Rptr. 734, 738: “It is necessary that it be established that defendant knew the contents of the book but it is not necessary to show that he knew it was obscene. * * * It having been established that defendant had read the book and therefore had knowledge of its character, the jury could infer from such knowledge a lewd intent on the part of defendant.” Bunis v. Conway, 20 A.D.2d 961, 249 N.Y.S.2d 700, 701: “The scienter required is knowledge of the content of the book by one accused of violating the section.” (Our emphasis.) And see City of Chicago v. Doe, 47 Ill.App.2d 460 (1964), 197 N.E.2d 711, 715 [5],

Scienter within the meaning of § 563.280 means knowledge of the contents of the publication. Scienter was twice so defined in Smith v. People of State of California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205. Referring to the Los Angeles ordinance under review the Court said: “The definition included no element of scienter' — knowledge by appellant of the contents of the book— * * *.” 361 U.S., 1. c. 149, 80 S.Ct. 1. c. 216. Later: “Eyewitness testimony of a bookseller’s perusal of a book hardly need be a necessary element in proving his awareness of its contents. The circumstances may warrant the inference that he was aware of what a book contained, despite his denial.” (Our emphasis.) 361 U.S., 1. c. 154, 80 S.Ct., 1. c. 219. To exonerate a bookseller on the basis of his testimony that he knew the contents of the book but did not know it was obscene would for all practical purposes make successful prosecution impossible, for it would put acquittal in the mouth of the defendant in every case. People v. Finkelstein, 28 Misc.2d 771, 218 N.Y.S.2d 341, 345 [5].

THE STATE’S BURDEN?

Appellant claims that the court erred in submitting the cause to the jury because the state failed to produce evidence (other than the book itself) of obscenity and the standards of the community and left it up to defendant to prove that the book is a work of literary art; that the state thus failed to introduce any evidence on the crucial issues; the state must adduce proof of community standards and the prurient effect of the book (by expert testimony) in order to give the jury some standard other than its own speculation on these matters, and that mere introduction of the book in evidence is insufficient to make a case for the jury. While this is the rule in the federal courts in the second circuit, United States v. Klaw, 2 Cir., 350 F.2d 155, it is not the rule in this jurisdiction. The rule here is that the question whether a publication conforms to general community standards and is obscene is not within the proper scope of expert testimony and that an opinion that a certain publication is obscene would invade the province of the jury by expressing an opinion on an essential ultimate fact to be determined by the jury. State v. Vollmar, supra, 389 S.W.2d, 1. c. 29, 30 [25]; State v. Becker, supra.

The state made a submissible case. We turn now to the other points of error made by appellant.

DENIAL OF A FAIR TRIAL?

Appellant asserts that he was deprived of a fair trial because of the manner in which the trial court conducted the trial “because he improperly intruded into the trial by cross-examining, interrupting and interfering with the witnesses for the defense, exhibited his bias and prejudice against the defense by his attitude and actions toward the defense and defense witnesses, and abused his discretion.” We are convinced from a study of this transcript that this point is well taken; that in spite of his efforts to avoid error the judge, no doubt subconsciously but nevertheless effectively, assumed the role of a partisan, confused the functions of prosecution and judgment, and violated the principles which govern the conduct of trial judges in criminal cases, as laid down in State v. James, Mo. Sup., 321 S.W.2d 698.

The judge’s personal opinion of Candy was revealed early when in an exchange with counsel during the taking of testimony on the motion to suppress evidence he referred to “the sale of this book Candy and all these other obscene books.” Counsel asked if he was deciding “right now that this book is obscene.” The judge said he had not decided anything but went on to say that “There are a lot of books on the newsstands that I consider obscene. I think most of the literature today wouldn’t get any sale unless it also was obscene.” When in the voir dire examination the prosecuting attorney referred to Candy as a novel the judge interrupted, inquired whether the prosecutor considered it a novel, and expressed his opinion that Candy “does not reach to the dignity of a novel.” He preferred that it be called “a paperback book.”

The judge’s predilection to interrupt counsel in the presentation of testimony and to dominate the proceedings is suggested by the fact that during the 87 pages of testimony on the three pre-trial motions the judge interrupted fifty some odd times with statements not necessary in the making of legitimate rulings or the conduct of the proceedings in an orderly manner.

During the presentation of the state’s case the judge did not interrupt counsel or witnesses. Interruptions of defense counsel and witnesses during the presentation of the defense, however, were frequent and at times threatened to disrupt the proceedings. According to appellant’s count, the trial judge injected himself into the proceedings on two of every three pages of the transcript of the proceedings before the jury, excluding purely formal interrogation such as qualification of witnesses. When a question called for an answer which was objectionable to the judge he would interrupt and say, “I anticipate that the state wants to make an objection,” or “Do I understand the state is not objecting?” The judge would raise his own objections to the propriety of answers sought to be elicited from defense witnesses without any objection by the state. He would call the attention of the prosecuting attorney to the fact that the state was changing its position or opening the door for the introduction of evidence by the defendant on certain subjects. The prosecuting attorney inquired about “the common man.” The judge corrected him with “Not the common man. The average man.” A defense witness, a Presbyterian minister, was asked “What is the nature of pornography?” The prosecuting attorney suggested that the witness should state definitely “what pornography is.” The judge, not wishing this question answered, interrupted the proceedings and called for a conference outside the hearing of the jury in which, in effect, he raised and sustained his own objection, telling the attorneys he would not permit the witness to state what is or is not pornography, and would limit the inquiry to whether Candy is a work of literature. He interrupted counsel’s inquiry concerning standards of living of the people with whom an expert witness had conversed (to lay a foundation for an expression of opinion as to the response of the people to the issues of our times) and inquired “What would standards of living have to do with this ?” When the witness opined that there is “a wide acceptance of a variety of attitudes towards sex” he interrupted with “A wide acceptance of what?” and when the witness later talked about “tremendous latitude” the judge said “Latitude for what?” When the witness indicated that Candy does not appeal to most people but has a limited appeal the judge tried to convert this into an acknowledgment that Candy does not measure up to the national standards of morality. The witness resisted this invitation and added that Candy is a healthy addition to the standard of morality. Thereupon the judge pursued with “I understood you to say that the majority of the people didn’t approve of this book; isn’t that what you said?” The witness started to answer, saying, “Most people don’t have the kind of interest in- — this book seems to me — The judge interrupted with “What do you mean by most people ? That is what I am trying to find out.” The witness, now thoroughly badgered, answered that he did not think that most people look for novels dealing with sex mores of our country. The court then commented “Well, then, you are saying in effect that you don’t know what the sex mores, the national sex mores, are then?” The state waived cross-examination, whereupon the judge took over, asked whether the minister was appearing as an individual or as a representative of the Presbyterian Church; whether he occupied an official position with the church; whether based on his training and education he would say that the morality of the nation is an important matter; whether he would further say that it is important that it be a good morality; whether “such a book as this strengthens and fortifies the morality of this nation.” When the witness said that the book “undermines immorality” the court, apparently unsatisfied, persisted with “You wouldn’t say, however, that it strengthens morality, would you?” When an apparently unsatisfactory answer to this question was given the court asked the minister if he had studied history. Assured that he had the court then asked: “Would you say that the downfall of many nations has been preceded by a falling, by a deterioration of their morality?”

A poet testified that he was familiar with books that have been called pornographic but which have been considered by the court to be works of art. This enlisted the interest of the judge who, openly stating that he “wanted to be sure that he was not saying that pornography was accepted literature,” actively cross-examined the witness on this matter, finally driving him to a distinction between books of pornography which are actually works of art and hard-core pornography. When the poet ex pressed an opinion that Candy had social importance as a satire the judge interrupted and sought to discredit the witness by eliciting the fact that he was not a sociologist. When the witness sought to compare Candy with Candide the judge developed the fact that sex morality was not the main feature of Candide and that it had been 7 or 8 years since the witness read Candide.

A Catholic priest, testifying about national morality and literature, stated that sex matters could be spoofed without dealing with pornography or appealing to prurient interest. The court interrupted, saying “I would like to interject one question. Is it possible that a book that is a satire or a spoofing of a subject * * * could also be obscene and contain pornographic matter?” Notwithstanding the witness answered “Yes” the court insisted “Simply because it is a satire or a spoof does not mean that it could not be obscene or pornographic, is that right ?” When the priest stated that a good satire with “good spoofing” could have social importance the court asked “Even though it was obscene and pornographic?” When an affirmative answer was given the judge, stating that he did not like to “interject” himself here, pursued the witness with five pages of intensive cross-examination on his statement that because of increased literacy the people are better able than in former years to judge whether a thing is well-written or not, and on the question whether the national standards of morality have slipped within the past 20 years. Thereafter the judge asked the priest whether the church had changed its views; whether the church had become more liberal on morality; whether the priest had any connection with the unofficial church organization called the Legion of Decency, and the function of that organization; whether the priest had a different standard for obscenity for one group over another group; whether it is the policy of the church that certain people are allowed to read obscene books because they are educated, and whether sophistication is an excuse for obscenity. He tried unsuccessfully to get the priest to say that for a person to be well educated he must have a course in obscenity, immorality and pornography. Defense counsel at one point objected to the conduct of the court “in taking over the cross-examination of witnesses, entering into the discussion in a highly partisan manner, expressing by facial expressions disbelief of the witness’s statements; and making an assumption throughout the course of the Court’s cross-examination of the witness that we are dealing with an obscene book.” The court stated that counsel’s observations as to the facial expression of the court was only counsel’s opinion and that it was not true. He sought to justify his actions on the ground that the testimony was ambiguous and needed to be cleared up for the jury.

An Episcopal minister, who had not read Candy, testified that community standards in relation to sex morality are extremely lax and that “by and large anything goes.” When the state’s cross-examination ended the judge took over and brought out that the witness was not in court under subpoena; asked him whether he came to court voluntarily; whether he knew the purpose of having him come to court and whether that purpose was “to defend this book Candy?” After objection the court persisted, making sure to elicit that the minister knew when he came to court that “The triai is over the book Candy” and that he came voluntarily.

The judge interposed himself repeatedly and continuously throughout the testimony of defendant’s psychiatrist. Without any objection by the state the judge interrupted when the witness was asked to give his opinion on national contemporary standards of morals in this country, and admonished the witness not to give what he personally thought the national standard is but “what he has found out to be the national standard.” After pages and pages , of frustrating haggling over terms, admonitions, limitations, objections and interruptions the witness finally gave his answer.

In an obvious attempt to soften and tone down the effect of the answer the judge asked “You mean it is an accepted standard, or that it is done and condoned?” When the witness was asked to give his opinion whether Candy violated the national standard the judge interrupted to ask whether the U. S. A. is a moral or an immoral community. When the witness finally was permitted to say that Candy was not unacceptable or out of conformity with the national standards the court, in apparent disbelief, said to the witness: “Are you saying that you found in going around the country that people approve of books such as Candy and that it is considered the reading standard of the U. S. ?” The court got into an exercise in semantics with the witness over the word “exceed” when the latter said that Candy does not exceed the national standard. The court then directed the prosecutor to question the witness as to what groups of people he gained his knowledge from. The witness was finally pinned down to the statement that he had spoken with three or four dozen people. The judge then asked if his opinion was “based on just those forty people, or forty eight people?” When the witness answered “Yes” the judge said “Sir?” When the witness reaffirmed his answer the court said “Your answer is ‘Yes’?” The witness said “yes” for the third time, whereupon the court, finally yielding, said “All right.”

Time and space prohibit further delineation. On the whole record the trial judge, a man of unimpeachable honor and firm convictions, in an effort to see that justice was done according to his concept of justice in obscenity cases, exceeded his powers, failed to maintain “that fine balance of impartiality, neutrality and objectivity” required of trial judges,⁹ and evidenced to the jury his personal view that Candy is obscene and detrimental to the morals of the United States.

Reversal and remand on one point ordinarily makes it unnecessary to consider other points of error. The other points raised on this appeal, however, are of such a nature that in the event of another trial the court will be confronted with many and possibly all of these same questions. For this reason we will settle these issues on this appeal.

DISCRIMINATION AGAINST DEFENDANT?

Appellant claims that he was denied equal rights and equal protection of the law because he was arbitrarily “swooped down upon” and arrested while others equally guilty of selling this book and similar books throughout the St. Louis area were not arrested. “The fact that third persons have also violated the law without being prosecuted therefor is no excuse for a violation by accused; * * *.” 22 C.J.S. Criminal Law § 53, p. 190. And see 21 Am.Jur.2d Criminal Law § 138. In United States v. Rickenbacker, 2 Cir., 309 F.2d 462, the following from United States v. Manno, N.D. Ill., 118 F.Supp. 511, was quoted with approval: “The fact that not all criminals are prosecuted is no valid defense to the one prosecuted.” See also Strand Amusement Co. v. Commonwealth, 241 Ky. 48, 53, 43 S.W.2d 321, 323; Highland Sales Corp. v. Vance, 244 Ind. 20, 186 N.E.2d 682 [5]; Grell v. United States, 8 Cir., 112 F.2d 861. The Supreme Court of Ohio states it this way: “Uniform operation of criminal justice does not require the release of the guilty for failure to prosecute others equally guilty.” Maloney v. Maxwell, 174 Ohio St. 84, 186 N.E.2d 728 [3], A 'defendant can derive no rights from a failure on the part of the prosecuting officials to enforce a law. State v. Ward, 361 Mo. 1236, 239 S. W.2d 313, 321.

In the exercise of his discretion a prosecuting attorney has the right to choose a course of action or nonaction, as long as he does not act wilfully or in bad faith. “That discretion may, in good faith (but not arbitrarily), be exercised with respect to when, how and against whom to initiate criminal proceedings.” State on Inf. McKittnick v. Wallach, 353 Mo. 312, 182 S.W.2d 313, 319, 155 A.L.R. 1. Here the city counsellor notified the vice division of the police department that in his opinion the book Candy was obscene and that the department had the right to make arrests for its sale. The officer in charge of the vice division instructed his officers to canvass various bookstores throughout the city to see if they could purchase the book. The officers made inspections in several other downtown stores, found none, but made one other arrest in another district. On this record we cannot say that the prosecuting attorney acted in bad faith, or exercised his discretion arbitrarily or corruptly, or that the statute regulating obscenity has been “applied and administered by public authority with an evil eye and an unequal hand.” Yick Wo v. Hopkins, 118 U.S. 356, 373-374, 6 S.Ct. 1064, 1073, 30 L.Ed. 220; United States v. Rickenbacker, supra.

AN UNQUALIFIED JURY?

Appellant claims that the jury empanelled in this case was neither qualified nor capable of deciding whether Candy is obscene; that their educational background, reading habits, breadth of vision through travel, experience, etc. as revealed by extensive voir dire examination demonstrates that they were not capable of determining whether Candy conforms to general community standards or is obscene; that a more informed jury with greater awareness of literary matters is required in an obscenity case. There is no showing that the jury was not- selected according to law or that any individual juror was so inferior and limited as to be ineligible to sit in judgment on this case. The General Assembly has prescribed the qualifications of and a procedure for empanelling juries in all cases and has not seen fit to make any other or different provision for the empanelling of a jury composed of persons with better-than-average educations or higher-than-average cultural refinement in “unusual” cases. This jury was carefully selected under this system. We are of the opinion that the jury actually empanelled was a jury of “average citizens” in whose ability to decide this very type of case this Court expressed its confidence in State v. Vollmar, supra.

VOIR DIRE EXAMINATION TOO LIMITED?

In the voir dire examination appellant’s counsel attempted but the court refused to permit him to question the jury as to their belief in the presumption of innocence, burden of proof, reasonable doubt, and the average person test in the determination of obscenity. Now it is urged that the court abused its discretion in refusing to permit defense counsel to examine into the qualifications, beliefs, attitudes and inclinations of the jurors and their ability and willingness to follow the court’s instructions, in connection with these subjects. The assignment of error is broader than the position taken at the trial.

This complaint refers to two incidents. In the first, defense counsel stated to the veniremen: “The defendant has entered a plea of not guilty, and he stands presumed in the eyes of the law to be not guilty.” An objection was sustained on the ground that this was a comment on the law. The judge stated that he would instruct on the law. Counsel indicated that he wished to question the members of the panel “as to whether any of them have any personal feelings for or against the rules which create a presumption of innocence on the part of the defendant; the rule which requires the State to sustain the burden of proof throughout the case; and rules pertaining to reasonable doubt.” The request was denied. The ruling was proper. Asking whether prospective jurors have any personal feelings for or against a rule of law is like asking whether they think the law is good or bad. When the latter question was before this Court in State v. Mosier, Mo.Sup., 102 S.W.2d 620, we said, 1. c. 624: “Their opinions on the merits of the law were immaterial unless so unyielding as to preclude them from following the law under the court’s instructions. That should have been the question asked [citing State v. Pinkston, 336 Mo. 614, 79 S.W.2d 1046].” In the instant case the personal feelings of the veniremen for or against the rules referred to were immaterial unless with respect to those rules they entertained views so unyielding as to preclude them from following the law under the court’s instructions. Defense counsel did not indicate any intention to question in this area. As to the second incident: After defense counsel had told the veniremen that the real question was whether defendant possessed the book with intent to sell and whether this book is in fact obscene, and after questioning them with respect to vivid or lurid descriptions to be found in the book, he said: “The determination of this question of obscenity is one for you to make judged by what the average person * * He was interrupted at that point by an objection on the ground that this was a matter of law. The objection was sustained with this comment, “The court will instruct the jury on the law.” Defense counsel explained that it was absolutely necessary to inquire “whether they can apply the standards of an average person rather than of their own actual circumstances themselves * * * concerning their belief as to the average person test.” The court stood on its ruling. There was no error in the ruling. The record indicates that defense counsel was not asking a question but was informing the jury as to the law. This is not the prerogative of counsel. State v. Bolle, Mo.Sup., 201 S.W.2d 158 [3], “The correct procedure is for counsel to ask the members of the panel whether, if the court later instructs them in a specified manner, they have any opinion or conscientious scruples such as would prevent them from returning a verdict accordingly — * * State v. Mosier, supra, 102 S.W.2d, 1. c. 624.

We find no abuse of discretion in the conduct of the voir dire examination. Unusual latitude was accorded counsel. The report of the examination occupies pages 102 to 262 of the transcript — 160 pages of voir dire examination, which is more than the entire record in many cases.

CANDY INADMISSIBLE IN EVIDENCE?

Error is assigned in admitting into evidence 9 copies of Candy seized by police officers, for a variety of reasons. The principal contentions under this point (that the search was unreasonable and illegal because the officers had no search warrant, and that there was no prior judicial determination that the book was obscene as a matter of law) were answered in detail in State v. Vollmar, supra, and we will not burden this already long opinion with a reiteration of what we recently said on these subjects in that case at 389 S.W.2d, 1. c. 24-26.

It was not error to receive the book in evidence on the ground that it was evidence of another crime (sale rather than possession with intent to sell). The sale of the book is competent evidence of possession with intent to sell.

There was sufficient evidence of possession with intent to sell. Neither ownership nor actual physical possession is necessary to constitute “possession” within the meaning of the statute. See State v. Jenkins, 321 Mo. 1237, 14 S.W.2d 624, and cases cited. Defendant was shown to have had custody and control of several copies of Candy and to have held them at his disposal for sale to the public. See State v. Virdure, Mo.Sup., 371 S.W.2d 196, 199. The jury could find that defendant was in possession of the several copies of Candy with intent to sell them from the evidence that he worked, clerked and sold books to customers at the bookshop where Candy was purchased; that he discussed books with customers who came into the store; that he knew that the copies of Candy were in the store and for sale, and knew where they were located; that he did orders, paid bills, and worked long hours (an average of 10 hours a day) at the store; that he had access to the cash register; that he received books in payment for his services, and that he actually sold the book Candy.

Finally under this point appellant claims that the recent enactment of § 563.28S, V.A.M.S. (Laws 1965, p. 670) preempted the field with reference to prior restraint of published matter and required a judicial determination of obscenity before any of the seized books could be introduced in evidence. The object and purpose of § 563.285 is different from that of § 563.280, under which defendant has been convicted. The object and purpose of § 563.285 is to prevent the sale and distribution of obscene material by injunction, seizure and destruction. It provides for a quick trial and quick decision of the issues in the case in order to afford constitutional safeguards for the protection of those selling or distributing nonobscene publications — to avoid the situation in which nonobscene matter might be seized and held for considerable periods of time. The object and purpose of § 563.280 is to criminally punish persons who shall sell, distribute, etc. obscene matter. Defendants prosecuted for violating this criminal statute are afforded the usual constitutional protections. Section 563.285 does not refer to § 563.280 and in prosecutions under § 563.280 does not require a prior judicial determination of obscenity before books found on the premises following a lawful arrest for possessing obscene matter with intent to sell can be taken into possession as evidence in the case, either in terms or by necessary implication. Section 563.285 does not preempt the field as claimed. The two sections are separate and distinct and are to be enforced independently.

DENIAL OF RIGHT TO A PUBLIC TRIAL?

Appellant objected to the action of the court in giving nine copies of Candy to the jury to read silently in the jury room in the presence of a deputy sheriff, during which time the court transacted other business unrelated to this trial. The objection is that this deprived appellant of his right to a speedy and public trial and to be present at such proceedings and to have the judge present during all stages of the proceedings. Appellant argues that the court’s suggestion that the state and the defendant could go into the room or that spectators could gather there to watch the jury read the book did not cure the error; that the room was too small to accomodate visitors and defendant’s presence alone in the room would have had a harmful and adverse effect upon appellant.

Having carefully considered the record in this connection we find no violation, but rather a careful safeguarding, of defendant’s constitutional rights in the manner in which the problem of acquainting the .jury with the contents of the book was solved. See United States v. West Coast News Co., D.C., 228 F.Supp. 171, aff. 357 F.2d 855; Winters v. United States, 8 Cir., 201 F. 845.

REFUSAL OF EXPERT TESTIMONY?

The trial judge permitted extensive testimony by experts as to the literary qualities of Candy, whether its dominant appeal was to prurient interest in sex, and whether it offends contemporary community standards. Appellant complains, however, of the consistent refusal of the judge to admit the opinions of the experts on the ultimate fact issue, whether the book is obscene. This subject is foreclosed by State v. Vollmar and State v. Becker, supra.

IMPROPER INSTRUCTIONS?

Appellant claims that the main verdict-directing instruction and the instruction defining terms erroneously stated the law and did not instruct the jury on all elements of the case. We consider the instructions as a proper declaration of the law under the test laid down by the last controlling decision of the United States in which a majority of the justices agreed on the test to be applied, namely, United States v. Roth, supra.

IMPROPER REFUSAL OF INSTRUCTIONS?

Appellant offered Instructions A through G. All were refused. Appellant complains that the court erred in refusing them because they were proper statements of the law, not covered by the instructions given. A included the tests laid down by three of the justices in Memoirs v. Com. of Massachusetts, supra. That opinion is not binding upon this Court because a majority did not concur in the suggested tests. Where a majority of a multi-judge court arrive at the same general result but for different reasons — where it does not appear that a majority of the court agreed as to the reasoning or as to a particular ground of the decision — the case cannot be considered as authority on the point concurred in by some but less than a majority. State ex rel. Columbia Nat. Bank of K. C. v. Davis, 314 Mo. 373, 284 S.W. 464; 21 C.J.S. Courts § 189; 20 Am.Jur.2d Courts § 195, p. 531, fn. 1. B erroneously required a finding that defendant knew that the book was obscene. C erroneously authorized an acquittal by comparing it to “Tropic •of Cancer,” a book which was not admitted in evidence. D instructed on an element •contained in the given instructions. E erroneously directed the jury to consider the effect of the book on the average adult person, and not its effect upon teenagers or children, whereas the true test is its effect upon the average person. The gist of F was included in the given instructions. G dealt with mitigating facts. Its refusal ■did not constitute reversible error.

For the reason given the judgment is reversed and the cause remanded for further proceedings.

All concur except SEILER, J., who dissents in separate dissenting opinion filed.

Footnotes

1

. “Every person who knowingly shall * ⅝ * have in his possession, with intent to sell or circulate * * * any obscene, lewd, licentious, indecent or lascivious book, ⅜ * * or other publication of indecent, immoral or scandalous character, * * * shall, on conviction thereof, be fined not more than one thousand dollars nor less than fifty dollars, or be imprisoned not more than one year in the county jail, or both * *

2

. “That no law shall be passed impairing the freedom of speech, no matter by what means communicated; that every person shall be free to say, write or publish, or otherwise communicate whatever he will on any subject, being responsible for all abuses of that liberty; * * Constitution of Missouri, 1945, Art. I, § 8. “Congress shall make no law * * * abridging the freedom of speech, or of the press, * * Constitution of the United States, First Amendment.

“ * * * nor shall any State deprive any person of * * * due process of law ⅝ * Constitution of the United States, Fourteenth Amendment.

3

. See also Jacobellis v. State of Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793 (footnote 378 U.S., 1. c. 188, 84 S.Ct., 1. c. 1678); United States v. West Coast News Co., 6 Cir, 357 F.2d 855 [3].

4

. which we have held does not mean the local area involved, but relates to a national standard, State v. Vollmar, supra, 389 S.W.2d, 1. c. 27 [17].

5

. § 207.10(2), Tent.Draft No. 6, 1957.

6

. Two English professors, an M.A. and a Ph.D., an Episcopal priest, a Catholic priest, a Presbyterian minister, a Ph.D. who is a sociologist-anthropologist, and a psychiatrist.

7

. Critics have said that it is a work of brilliance and solid worth; that we need it; that it should be a good shot in the arm to the American reading public; that it is “a wonderful break for everybody.”

8

. “Satire” is defined in Webster’s Third Xew International Dictionary as “topical literary composition holding up human or individual vices, folly, abuses, or shortcomings to censure by means of ridicule, 'derision, burlesque, irony, or other method sometimes with an intent to bring about improvement * * * a branch of literature ridiculing vice or folly * * ⅜ raillery used to convey rebuke or criticism: caustic comment: irony. ⅜ ⅜ * ”

9

. Harms v. Simkin, Mo.App., 322 S.W.23 930, 939.