author: HOUSER, Commissioner.

text:
    STATE of Missouri, Respondent, v. William Cullen BRIDGES, Appellant.
    No. 51890.
    Supreme Court of Missouri, Division No. 1.
    Feb. 13, 1967.
    Motion for Rehearing Denied March 13, 1967.
    David M. Grant, St. Louis, for appellant.
    Norman H. Anderson, Atty. Gen., Jefferson City, Ben Ely, Jr., Sp. Asst. Atty. Gen., St. Louis, for respondent.
   HOUSER, Commissioner.

This is an appeal by William Cullen Bridges, a licensed physician, who was indicted under § 559.100 and convicted by a jury of manslaughter, by procuring an abortion on Rose Davenport, a pregnant 13-year-old female.

The first question is whether the indictment is sufficient to support this conviction. Under Criminal Rule 28.02, V.A.M.R. this Court is required to render judgment on the sufficiency of the indictment upon the record before us, whether or not the question is raised by assignment of error. (It was raised by defendant by a preliminary motion to dismiss the indictment on the ground that it failed to charge affirmatively or in a negative way every fact necessary to constitute the essential elements of the crime. The motion to dismiss was heard in the assignment division of the circuit court and overruled. The point was raised a second time in assignment of error number one in defendant’s motion for a new trial and again overruled.)

The judgment of conviction must be reversed because the indictment is fatally defective.

The pertinent part of § 559.100 follows:

“Any person who, with intent to produce or promote a miscarriage or abortion, * * * uses upon [a woman] * * * any instrument * * * to produce a miscarriage or abortion (unless the same is necessary to preserve her life or that of an unborn child, * * *), shall, in event of the death of said woman, * * * being thereby occasioned, upon conviction be adjudged guilty of manslaughter, * * (Emphasis ours.)

The indictment charged that defendant, between August 1 and 7, 1964, in the City of St. Louis, “in and upon the body of one ROSE DAVENPORT, she the said ROSE DAVENPORT being then and there pregnant, unlawfully, wilfully and feloniously did then and there employ, use, insert, thrust and force a certain instrument, the exact nature and description of which is to this informant unknown, into the body, private parts and womb of her, the said ROSE DAVENPORT: that the said WILLIAM CULLEN BRIDGES was a duly licensed physician and that a miscarriage and abortion was not then and there necessary to preserve the life of an unborn child of which said ROSE DAVENPORT was then and there pregnant, as aforesaid; that by means and in consequence of the unlawful, wilful and felonious use and employment of said instrument by the said WILLIAM CULLEN BRIDGES in and upon the body, private parts and womb of the said ROSE DAVENPORT, as aforesaid, she, the said ROSE DAVENPORT, then and there became and was greatly injured, wounded and mortally diseased of her body and then and there did die on the 7th day of August, 1964 of the said injury, wound and mortal disease; contrary to the form of the Statute in such case made and provided, and against the peace and dignity of the State.”

The indictment fails to allege that the abortion was not necessary to preserve the life of Rose Davenport, as required by the wording of § 559.100 above italicized, and thus fails to negative one of the exceptions contained in the statute defining the offense. The same situation confronted this Court in State v. Meek, 70 Mo. 355, in which case this Court stated, 70 Mo. 1. c. 357:

“All the authorities agree that when the exception constitutes a part of the description of the offense sought to be charged, the indictment must negative the exception, otherwise no offense is charged. State v. Shiflett, 20 Mo. 415; State v. Sutton, 24 Mo. 377; Commonwealth v. Hart, 11 Cush. [Mass.] 130; State v. Barker, 18 Vt. 195. An indictment which should charge simply that the defendant produced an abortion, would charge no offense under the statute; for abortion is an offense only when it is not necessary, and is not advised by a physician to be necessary to save the life of the mother. For the same reason it would be insufficient to charge only that abortion was produced when it was unnecessary to save the life of the mother, as it may have been advised by a physician to be necessary to save the mother’s life, although in fact it was not so necessary; and in that event the statute declares that the person producing it is guilty of no crime. It is manifest, therefore, that when the exceptions are contained in the cause of the statute defining the offense and constitute a part of the description, the exceptions must be negatived.”

State v. Meek, supra, has been cited with approval on this proposition for nearly 90 years. It is firmly embedded in the case law of this state. State v. O’Brien, 74 Mo. 549; State v. Casto, 231 Mo. 398, 132 S.W. 1115 [3]; State v. De Groat, 259 Mo. 364, 168 S.W. 702; State v. Ackley, Mo.Sup., 183 S.W. 291 [1] (in which the state conceded that an information was fatally defective in not stating that the operation was necessary to save the life of an unborn child); State v. Mikel, Mo.Sup., 278 S.W. 670. Perhaps the most often quoted statement of the rule and its qualifications is that of Judge Faris in State v. De Groat, supra, 168 S.W., 1. c. 705:

“The ? general rule as to the contents of an indictment which charges an offense, to which there are exceptions negativing guilt, is that all such exceptions must be pleaded in the indictment when they occur as parts of the statutory definition of the offense, in all cases where, if such exceptions be omitted, the offense cannot be accurately described. State v. Meek, 70 Mo. 355, 35 Am.Rep. 427; State v. Bockstruck, 136 Mo. 335, 351, 38 S.W. 317; 1 R.C.L. 80; State v. Casto, 231 Mo. 398, 132 S.W. 1115; State v. Longstreth, 19 N.D. 268, 121 N.W. 1114, Ann.Cas.1912D, 1317; State v. Wells, 35 Utah 400, 100 P. 681, 136 Am.St. Rep. 1059, 19 Ann.Cas. 631. But where such exceptions are not a part of the statutory definition of the crime, where they are contained in distinct and independent clauses of the statute, or in separate sections, it is not usually necessary either to plead them or to prove them. Such exceptions are pure matters of affirmative defense. State v. O’Brien, 74 Mo. 549; State v. Doerring, 194 Mo. 398, 92 S.W. 489. There is no doubt that both by these rules and by stare decisis abortion falls, pursuant to the statute defining it, into the first category. State v. Casto, supra; State v. Meek, supra.”

In State v. Mikel, supra, an information charging manslaughter by abortion failed to negative the statutory exception “if such person is not a duly licensed physician, unless the said act has been advised by a duly licensed physician to be necessary for such a purpose.” After quoting the above authorities the court went on to say, 278 S.W., 1. c. 671:

“The information in the instant case does not charge the defendant with a criminal abortion, in that it fails to negative the exception referred to which is a part of the statute defining the offense. Other assignments of error need not be considered. The judgment is reversed and the cause remanded in order that the information may be amended if the prosecuting attorney shall be so advised.”

Informations charging manslaughter by abortion which are sufficient in form and substance always contain an allegation negativing the exceptions. See State v. Dargatz, 244 Mo. 218, 148 S.W. 889; State v. Goodson, 299 Mo. 321, 252 S.W. 389; State v. Anderson, 298 Mo. 382, 250 S.W. 68.

These previous decisions control the question now before us.

The principle that exceptions must be pleaded in the indictment or information when they occur as parts of the statutory definition of the offense has been applied in numerous cases. See State v. Pilkinton, Mo.App., 310 S.W.2d 304, 1. c. 308. And see its recent application in State v. Holbert, Mo.App., 399 S.W.2d 142. Examples of exceptions or provisos which need not be negatived are to be found in State v. Zammar, Mo.Sup., 305 S.W.2d 441, and State v. Brown, 306 Mo. 532, 267 S.W. 864, and cases cited therein.

The state concedes that “Properly such an allegation should have been included” and that “Generally, such exceptions should be negatived in an indictment or information,” but contends that its omission in this case does not make the indictment fatally defective because the indictment charges that the abortion was done unlawfully and feloniously, words which the state argues necessarily imply that the exception was absent. The only authority cited in support of this argument is the statement in 27 Am.Jur., Indictments and Informations, § 107, p. 667, that “The rule requiring an exception to be negatived does not apply to a case where the charge preferred necessarily and conclusively imports a negative of the exceptions.” It does not follow, however, from the fact that the abortion was unlawful and felonious that the abortion was not necessary to save the mother’s life. The necessity might exist and the act yet be unlawful and felonious by reason of the manner in which the defendant performed the act. A charge that the act was done unlawfully and feloniously does not supply the missing required allegation that the abortion was not necessary to preserve her life.

We have considered whether the defect was cured by the statute of jeofails, § 545.030; Criminal Rule 24.11, but it is plain that that statute and rule cannot save this indictment. As stated in State v. Meek, supra, 70 Mo., 1. c. 358, “[t]he statute of jeofails * * * was intended to apply only to immaterial averments, such as are not necessary constituents of the crime charged and need not in any way be made to appear. The exception we are considering is a part of the description of the offense, and, therefore, material.”

We have also considered whether the defect may have been cured by the verdict, see 15A Missouri Digest, Indictment and Information, §202, but the rule that an indictment will not be held bad after verdict has no application where the indictment fails in some essential averment necessary in the description of the crime charged. State v. Biven, Mo.Sup., 151 S.W.2d 1114, and cases cited 151 S.W.2d, 1. c. 1118. The averment missing in this case is essential. A verdict is ineffective to supply the omitted essential elements of a statutory offense. State v. Watson, 356 Mo. 590, 202 S.W.2d 784, 787.

The indictment being fatally defective the judgment must be reversed and we need not consider the other assignments of error. Since the offense is not yet barred by limitations we order the cause remanded to give the circuit attorney an opportunity to file a substitute information properly charging the offense, § 545.300, if he is so advised.

Reversed and remanded.

WELBORN and HIGGINS, CC., concur.

PER CURIAM:

The foregoing opinion by HOUSER, C., is adopted as the opinion of the court.

All of the Judges concur.

      . All section references are to RSMo 1959, V.A.M.S., except where otherwise noted.


source: Caselaw Access Project

author: LAURANCE M. HYDE, Special Commissioner.

license: Public Domain

text:
    FIRST NATIONAL BANK OF JOPLIN, Plaintiff, v. Jack SOLOMON et al., Defendants, Mort Allen, Jr., Individually and as Executor of the Estate of Ella Allen, Deceased, Appellant, and Morris Kurtz, Henry Kurtz and Ruth Witschner, Respondents.
    No. 52270.
    Supreme Court of Missouri, Division No. 1.
    Feb. 13, 1967.
    Motion for Rehearing Denied March 13, 1967.

      Edward T. Wright and George D. Pittman, Jr., St. Louis, for appellant.
    Jack Z. Krigel, Kansas City, for respondents Morris Kurtz, Henry Kurtz and Ruth Witschner.
   LAURANCE M. HYDE, Special Commissioner.

Action by executor to construe will and codicils. The contested issue is whether the second codicil to the will of Lee Rothschild, deceased, revoked all devises and bequests to Mort Allen, Jr., and Ella Allen (now deceased) as residuary devisees. The amount which they would lose if respondents Morris Kurtz, Henry Kurtz and Ruth Witschner prevail is $26,000.00, so that we have jurisdiction (Sec. 3, Art. V, Const., Sec. 477.040 RSMo V.A.M.S.) Apparently- the will also disposed of real estate. Appellants have appealed from the judgment entered on respondents’ motion for summary judgment, adjudging that appellants have no interest in the residuary estate.

Paragraphs VIII, XII and XIII of the will dated November 26, 1957, were as follows:

“VIII. I give and bequeath to Jackie Collins and Virginia Collins, share and share alike, the sum of Three Hundred ($300.00) Dollars, to them and their heirs forever. * * *
“XII. All the rest, residue and remainder of my estate, after the payment of the above bequests, real, personal or mixed, I give, devise and bequeath to Ella Allen, Mort Allen, Jr., Sue Perry, Morris Kurtz, Henry Kurtz and Ruth Witschner, share and share alike, to them and their heirs forever.
“XIII. In the event of a common catastrophe in which both my wife and I should lose our lives, and in the event that I survive my wife even for a matter of minutes, I further give, devise and bequeath the bequests mentioned in Paragraphs two and three above, which I have bequeathed to my wife, Lillian Rothschild, to Ella Allen, Mort Allen, Jr., and Sue Perry, share and share alike, to them and their heirs forever.”

The first and last paragraphs of the first codicil of September 2, 1960, were as follows :

“WHEREAS I, LEE ROTHSCHILD, of Joplin, Missouri, have, by my. last will and testament in writing, duly executed, bearing date of November 26, 1957, given and bequeathed in Paragraph Eight (8) of said will, certain bequests to Jackie Collins and Virginia Collins and I desire that this bequest in Paragraph Eight (8) be totally void and held of no effect. * * * (The second, third and fourth paragraphs put in trust all property going to the testator’s wife with the First National Bank of Joplin as trustee.) * * *
“Now I, the said Lee Rothschild, do make this codicil to my said will, having heretofore revoked Paragrpph Eight (8) of said will, and having established a trust estate for my said wife, Lillian Rothschild. And I do ratify and confirm my said will in everything except where the same is hereby revoked and altered as aforesaid.”

The second codicil of August 15, 1962, was as follows:

“WHEREAS I, LEE ROTHSCHILD, of Joplin, Missouri, have, by my last will and testament in writing, duly executed, bearing date of November 26, 1957, given and bequeathed in Paragraph Eight (8) of said will, certain bequests to Ella Allen and Mort Allen, Jr. and I desire that these bequests in Paragraph Eight (8) be totally void and held of no effect.
“Now, I, the said Lee Rothschild, do make this second codicil to my said will, having heretofore revoked Paragraph Eight (8) of said will pertaining to Ella Allen and Mort Allen, Jr. And I do ratify and confirm my said will in everything except where the same is hereby revoked and altered as aforesaid.”

Of course, we follow the well settled rule of construction of wills “that a codicil is to be regarded as a subsequent clause of the will, and they are to be considered as one instrument and construed as such,” Malone v. Moberly, Mo.App., 55 S.W.2d 1008, 1009, and cases cited. However, “the principle is perfectly clear that where you have a distinct disposition made by a will, that disposition cannot be revoked by a codicil except through the medium and use of words equally distinct.” 1 Jarman on Wills, 8th Ed., 203; see also 57 Am.Jur. 419, Wills, Sec. 612; 59 A.L.R.2d 89, Annotation.

In First National Bank of Kansas City v. University of Kansas City, Mo.Sup., 245 S.W.2d 124, 128, we thus stated this principle : “The clear, plain and positive terms of a will are not changed by a subsequent clause unless the subsequent clause is as clear, plain and unequivocal as the prior clauses. This, however, is nothing more than an application of the general rule that the intention of the testator must be ascertained from the will as a whole, for in no such case would the weaker provisions be permitted to overthrow the stronger.” See also Middleton v. Dudding, Mo.Sup., 183 S.W. 443, 445; Barnhardt v. McGraw, 319 Mo. 680, 5 S.W.2d 77, 80; St. Louis Union Trust Co. v. Kelley, 355 Mo. 924, 199 S.W.2d 344, 350; see also other cases cited under G472, West’s Missouri Digest, Wills.

In this case, the will contained two paragraphs XII and XIII which named Ella Allen and Mort Allen, Jr., as devisees; and it appears that they would have received at least twice as much under Paragraph XIII as under Paragraph XII, which was the one that became effective since the testator’s wife did survive him. The second codicil did not say all bequests to Ella Allen and Mort Allen, Jr., were to be void but only “certain bequests” given in a single paragraph designated as Paragraph 8. Of course it is apparent that the second codicil either did not designate an intended paragraph or perhaps not intended persons, but nevertheless it is not apparent which of the subsequent paragraphs was intended, even if the intended persons were named. Furthermore, there is nothing in this codicil to identify the residuary clause (which also included an interest in real property) as the one intended and the term “certain bequests” indicates otherwise. Therefore, it is obvious that the terms of the second codicil are not as clear, plain and unequivocal as the language of Paragraphs XII and XIII.

Respondents claim that under the rule of Sec. 474.430, RSMo V.A.M.S., the true intent and meaning of the testator can be determined from the will and the codicils construed as one instrument, citing cases stating that rule and saying a palpable error of reference should be disregarded. McMahan v. Hubbard, 217 Mo. 624, 118 S.W. 481, 484; Baker v. Grossglauser, Mo.Sup., 250 S.W. 377, 379; Burrier v. Jones, 338 Mo. 679, 92 S.W.2d 885, 887. Perhaps the cited case nearest in point is Burkholder v. Burkholder, 412 Ill. 535, 107 N.E.2d 729, in which the third paragraph of the testator’s will devised land to his wife for life with power to use or dispose of it; but the fourth paragraph (which did not mention any property) provided “the property mentioned in the fourth paragraph” undisposed of at his wife’s death should go to his children. The court said: “Apparently, the reference to ‘the property mentioned in the fourth paragraph’ was an inadvertent error. The context makes it clear that the third paragraph was intended. The parties have so construed the will, and we agree with that construction.” The trouble here is the parties do not agree on construction and we do not consider (even if designation of Paragraph Eight was inadvertent) that the context of the will and the codicils makes it clear whether reference to either Paragraphs XII and XIII was intended. The fact that the conditions which would have made Paragraph XIII applicable never occurred cannot make any difference because it could not have been known at the time the second codicil was executed whether or not they would occur.

It appears that, while respondents claim to seek interpretation of the will and the codicils, they are really seeking reformation of the second codicil. As written it has no effect whatever on either provision of the will for appellants. It is stated (45 Am.Jur. 597, Reformation of Instruments, Sec. 27) : “A court of equity has no jurisdiction over a suit to reform a will, at least a will not made in pursuance of a contract.” Several reasons are stated, such as (1) “[A]n action to reform a written instrument is in the nature of an action for specific performance and requires a consideration for its support”; (2) “[T]he statute of wills provides for devolution of property by wills actually made, and not by wills persons intend * * * to make but do not make”; (3) when a will has been admitted to probate, this “is the judgment of the court that the instrument, just as it is written, is the last will and testament of the testator,” and “such judgment cannot be attacked collaterally.” It is further stated courts “will admit extrinsic evidence where the effect of it is merely to explain or make certain what the testator has written but never to show what the testator intended to write.” In Goode v. Goode, 22 Mo. 518, 522, this court said: “This action is substantially a proceeding to correct a mistake in a will, and we hesitate not to declare that such a proceeding cannot be allowed or sustained * * *. Admit this doctrine, and you may as well repeal the statute requiring wills to be in writing, at once. Witnesses will then make wills and not testators.” See also Lomax v. Lomax, 218 Ill. 629, 75 N.E. 1076, 1079, 6 L.R.A.,N.S., 942; see also Annotation, Mistake of Draftsman, 90 A.L.R.2d 933, 949.

The judgment is reversed and the cause remanded with directions to enter a judgment that the residuary estate of the testator Lee Rothschild be distributed in six equal parts to Mort Allen, Jr., Mort Allen, Jr., as executor of the estate of Ella Allen, deceased, Sue Perry, Morris Kurtz, Henry Kurtz and Ruth Witschner.

PER CURIAM:

The foregoing opinion by HYDE, Special Commissioner, is adopted as the opinion of the Court.

All of the Judges concur.


author: WELBORN, Commissioner.

text:
    John MACHECA, Plaintiff-Respondent, v. DeWalt FOWLER, Defendant-Appellant.
    No. 52414.
    Supreme Court of Missouri, Division No. 1.
    March 13, 1967.
    As Modified March 24, 1967.

      John C. Shepherd, Paul V. Gilbert, Evans & Dixon, St. Louis, for appellant.
    Gregg Wm. Keegan, St. Louis, James Jeans, St. Louis, of counsel, for respondent.
   WELBORN, Commissioner.

John Macheca sued DeWalt Fowler for $25,000 damages for personal injuries claimed to have resulted from an automobile collision. A nine-man jury verdict was against the plaintiff and in favor of defendant. The trial court granted a new trial on plaintiff’s motion. Defendant has appealed from the order granting a new trial.

The collision in question occurred on August 24, 1962, in St. Louis, in the vicinity of the intersection of Lindell Boulevard and Whittier Avenue. The four vehicles involved were eastbound on Lindell in morning rush hour traffic. A Rambler, driven by Dr. Arnold S. Block, was the farthest east. Immediately, behind it was a Volkswagen, driven by Miss Diana Morgan. Immediately behind the Volkswagen was plaintiff’s Ford station wagon. The defendant’s Dodge was the next following vehicle. The Rambler came to a stop, then the Volkswagen and then the Ford. Defendant collided with the rear end of the Ford, knocking it into the Volkswagen and that vehicle ran under the rear of the Rambler.

Plaintiff sued the drivers of the other three vehicles involved but motions for summary judgment on behalf of Doctor Block and Miss Morgan were sustained, so plaintiff went to trial against Fowler only. Plaintiff’s case was submitted on the rear-end theory. The only instruction offered by defendant called for a verdict in his favor if the jury found that he was not negligent or that plaintiff was not damaged. The nine-man verdict was in favor of defendant. The trial court sustained plaintiff’s motion for new trial for alleged errors in permitting the introduction into evidence of the allegations of negligence against Doctor Block and Miss Morgan in plaintiff’s petition and in permitting argument based upon the admission claimed to have been made in such allegations. The trial court also sustained the motion for new trial on the grounds that it erred in permitting defendant to show that, although plaintiff had deleted any claim for lost wages from his petition prior to trial, plaintiff originally claimed a loss in weekly wages of $1,000.00. The court also sustained the allegation of error in permitting argument on the basis of the original claim of lost wages.

According to plaintiff’s testimony, he was driving east on Lindell in heavy morning rush hour traffic, moving twenty to twenty-five miles per hour. A traffic signal at Sarah Boulevard, approximately a block east of Whittier apparently stopped the flow of traffic on Lindell and vehicles ahead of plaintiff came to a halt. He stated that Miss Morgan, in the Volkswagen immediately ahead, came to a gradual stop, without a signal or warning, and that he likewise came to a gradual stop. He had been stopped for four or five seconds when, without warning, defendant’s vehicle struck plaintiff’s auto in the rear. Plaintiff testified that he got out of his auto, went to defendant’s vehicle, asked him what had happened and defendant replied: “I am sorry, my foot slipped off of the brake and jammed down on the gas.”

Defendant testified that he was about two car lengths behind plaintiff’s vehicle, travelling at about twenty-five miles an hour. He noticed plaintiff’s station wagon. “[Sjuddenly the back raised up, and it seemed to me it was very close, and I jammed on my brakes and struck it.” Defendant placed his speed at the time of impact at ten miles per hour. His auto skidded before it struck plaintiff’s. Defendant acknowledged that he told plaintiff that his foot slipped off the brake, but claimed that this occurred upon impact.

On cross-examination of plaintiff, defendant’s counsel inquired of plaintiff concerning the allegations in his petition in which he charged Miss Morgan with negligence in that “she did stop her said automobile at a time when the automobiles were in such close proximity behind her that a collision was imminent.” Plaintiff’s counsel’s objection to the question on the grounds that the issue of Miss Morgan’s liability had been settled by the summary judgment was overruled. Plaintiff stated that he knew nothing about the allegation of his petition in this respect or insofar as it charged that Miss Morgan failed to signal her intention to stop, as required by an ordinance of the City of St. Louis.

On redirect examination, plaintiff’s counsel elicited from plaintiff that he knew nothing about the pleadings in the case. Counsel then proceeded to interrogate his client about his knowledge of the disposition of his claims against Doctor Block and Miss Morgan and when defendant’s counsel objected to plaintiff’s attorney’s summarization of the record of such matters, plaintiff’s counsel stated: “I would like to have the entire court file marked as Plaintiff’s Exhibit 10, as a matter of evidence, and if the jury wants to see it they can.” Defendant’s counsel stated that he had no objection. The file was so marked and plaintiff’s counsel proceeded to read into this record the disposition of plaintiff’s claim against the other two drivers.

Subsequently, as part of defendant’s case, defendant’s counsel read the allegations of the petition charging that Block and Morgan stopped when the autos behind them were in such close proximity that a collision was imminent and that they failed to signal their intention to stop. Provisions of an ordinance, set out in the petition, requiring a signal, were read. Plaintiff’s counsel objected that the matters so read did not constitute admissions and the objection was overruled. Plaintiff’s counsel then stated: “Let the record show that I desire to read from the court file which I will be very happy to let the jury have.” He then proceeded again to read the record of the disposition of the Block and Morgan motions for summary judgment.

In Stolte v. Larkin, 8 Cir., 110 F.2d 226, 233, the court stated:

“There are admissions in pleadings which are conclusively binding upon the party making them. There are other such admissions of milder character which are not conclusive but which are proper evidence as constituting statements against interest. The latter cláss of admissions in pleadings occupies the same place in a trial as other admissions .against interest no matter how made.”

Appellant contends that the allegations of plaintiff’s petition introduced into evidence are within the latter class and should have been admitted. Appellant’s theory of the admissibility of these matters from the petition is stated as follows:

“This was a four-car rear end collision in which the defendant’s automobile was the last car in line. It was the defendant’s contention at the time of the trial that the plaintiff came to such a sudden stop that defendant could not avoid the accident and was thereby not negligent. The defendant contended that since he was behind the plaintiff’s station wagon which was the next car in line, that he had a limited view of the second car in line, the Volkswagen, as well as the first car. That is, did they come to a sudden stop without giving the plaintiff sufficient warning so that he in fact came to this sudden stop. The plaintiff, whose view was not so blocked but who admitted he could see over the Volkswagen and see the first car in line, was in a peculiar position to give testimony as to exactly what had happened to these automobiles. Therefore the plaintiff’s previous claim that defendants Morgan and Block had come to sudden unsignaled stops was quite important.”

There are limits upon the use of a pleading allegation as an admission against interest. Thus, where a pleader pleads alternatively or inconsistently, as permitted by modern pleading rules, such inconsistent or alternative allegations may not be used against the pleader because "they do not possess the characteristics inherent in admissions against interest * Hardwick v. Kansas City Gas Co., 355 Mo. 100, 195 S.W.2d 504, 509, 166 A.L.R. 556. Similarly, legal conclusions may not be relied upon as admissions. Giannone v. United States Steel Corp., 3rd Cir., 238 F.2d 544, 548(9).

In Missouri the general rule has been applied that, in cases involving multiple pleas, a pleading on one issue may not be used as an admission upon another issue in the same case. Johnson v. Flex-O-Lite Mfg. Corp., Mo.Sup., 314 S.W.2d 75, Hardwick v. Kansas City Gas Co., supra. In Johnson, plaintiff sued Hays, the driver of an auto in which he was a passenger. He also sued Shrum, the driver of a second vehicle involved in the collision, and Flex-O-Lite as owner of a third involved vehicle. At the trial, Hays, as a witness for plaintiff, testified that the Flex-O-Lite truck had sideswiped his car. Flex-O-Lite attorneys sought to introduce into evidence allegations from Hays’ answer, charging, in effect, that the collision between his auto and Shrum’s was caused solely by the negligence of Shrum. When plaintiff failed to testify to any facts showing negligence on the part of Hays, Flex-O-Lite sought also to introduce the allegations of plaintiff’s petition charging negligence to Hays. In holding that these matters were properly excluded, the court stated (314 S.W.2d 79) :

“Here the appellants undertook to úse for impeachment purposes pleadings directed at other parties in a multiple plea case, that is, the defendant Hays’ plea against defendant Shrum and the plaintiff’s plea against the defendant Hays. Since the pleas ‘do not possess the characteristics inherent in admissions against interest’ they cannot in these circumstances be used to impeach or discredit a party witness; otherwise, the purpose of our code and the office of the pleading thereunder would be perverted and defeated. If one such issue were read to the jury, then it might become necessary to read other averments in explanation thereof until the entire pleadings were before the jury, a thing our decisions forbid.”

Here, plaintiff charged the three defendants with acts of “combined and concurring negligence.” The failure of his charges against the other two defendants did not defeat his right to continue to assert against the defendant here the matters alleged as negligence on this defendant’s part. Plaintiff had the right to try his case on the issues made against this defendant without regard for the charges previously made against the two involuntarily dismissed defendants.

As Wigmore states in discussing the rule prohibiting the use of pleadings upon another issue in the same cause:

“[T]he object of each set of pleadings or counts is to raise and to define the separate issues, and any use of the one to aid the other would to that extent defeat this object and prevent the trying of the issue made.
“ * * * It is a purely artificial rule, an exception to principle, and is rendered necessary solely by the peculiar theory of common-law pleading; for its fundamental object is ‘to separate the law from the facts, and to narrow the latter down to a single issue,’ and the statute permitting multiple pleas did not and could not destroy the primary scheme of keeping each issue independent for the purpose of submission to the jury. Thus, in order to secure for each of these issues an independent investigation,. it becomes necessary, during that trial, to ignore, artificially, the existence of the other series of pleadings in the same cause.” IV Wigmore on Evidence, § 1064 (2), pp. 48-49.

Johnson v. Flex-O-Lite Mfg. Corp. recognizes a possible exception to the exclusionary rule where “a party-witness has testified contrary to a purely factual allegation of his pleadings.” 314 S.W.2d 86. See Stolte v. Larkin, supra; Richardson v. Wendel, Mo.Sup., 401 S.W.2d 455,460 [11]. The allegation regarding the lack of warning by Morgan and Block is not contrary to plaintiff’s testimony on the trial, but is consistent with it. Obviously, if the contradiction is to be limited to “purely factual allegations,” the provisions of the ordinance should not have been introduced. However, we would not consider that alone prejudicially erroneous.

Plaintiff did testify at the trial that Miss Morgan came to a “gradual stop” and that he did likewise. Defendant argues that the effect of plaintiff’s petition was to charge that both Doctor Block and Miss Morgan came to a “sudden stop”. However, no such language is to be found in the portions of the petition read into evidence. The charge is that the vehicles were stopped “when the automobiles were in such close proximity behind [them] that a collision was, imminent.” Even coupled with the subsequent charge of failure to signal, we do not accept plaintiff’s construction of the pleading as equivalent to an allegation of a “sudden stop.” To us, the language directly referring to the stopping does not purport to characterize it as sudden or abrupt. In fact, we are somewhat at a loss to determine the exact meaning of the language used. It is more in the nature of a statement of a legal theory of possible liability than a “purely factual” statement. It is not, in our opinion, clearly equivalent to a charge of sudden stopping. In this respect, the allegation in Knorp v. Thompson, 352 Mo. 44, 175 S.W.2d 889, relied upon by plaintiff, which the court found equivalent to an admission by the defendant in a humanitarian case that the plaintiff was oblivious of peril, was'much more detailed and factual than the allegation here involved.

In our opinion, this case does not fall within the exception suggested in Johnson v. Flex-O-Lite Mfg. Corp., supra, and the injection of the pleadings of plaintiff against the other defendants deprived plaintiff of a fair trial on the issue of the negligence charged against this defendant.

The evidence of the allegations of plaintiff’s petition insofar as Doctor Block and Miss Morgan were concerned should have been excluded in this case. The injection of that evidence obviously tended to confuse the issues, and the trial court could correctly conclude that the error in the admission of the evidence justified the granting of a new trial.

Inasmuch as the other matter for which a new trial was ordered might recur, we refer briefly to it. Plaintiff’s original petition alleged that he had suffered lost wages at the rate of $1,000 per week. Before trial, the petition was amended to delete reference to lost wages and in his opening statement counsel for plaintiff stated that his evidence would show no lost wages. Nevertheless, in his opening statement, counsel for defendant was permitted to tell the jury that it would be shown that plaintiff had originally claimed damages for lost wages of $1,000 per week. When plaintiff’s counsel objected to the injection of this matter into the case, the court stated: “[H]e [defendant’s counsel] can use the pleadings and you will have to counteract it in any way you see fit.” Defendant’s counsel did read to the jury the allegation pertaining to lost wages which had been deleted from plaintiff’s petition by amendment. On his closing argument, defendant’s counsel dwelt at length on the claimed significance of the deleted allegation. For example, he stated:

“I suggest to you that a man who would exaggerate how much he lost in a case, a man who would exaggerate and say that he lost a thousand dollars a week in wages when he didn’t, a man who would exaggerate in that kind of fashion might also exaggerate on how the accident happened.”
“ * * * When you get up in your jury room to determine this whole thing, I suggest to you that the facts of the accident have been exaggerated just the way they have tried to exaggerate everything else about a fracture and a wage loss, and all this other business * •*

The evidence of what had been said in the deleted portion of the petition should not have been admitted because it did not constitute an admission. The plaintiff acknowledged that no claim was being made for lost wages. Certainly, the abandoned allegation did not contradict any testimony offered by plaintiff. The fact that he had previously asserted such a loss became immaterial when the claim was deleted from plaintiff’s petition. Thereafter, there was nothing on that issue for contradiction and the injection of the deleted allegation could only have been for the purpose of providing a basis for the inflammatory and prejudicial argument of defendant. As the court stated in Johnson v. Flex-O-Lite Mfg. Corp. (314 S.W.2d 80):

‘‘Proof of an averment, made hopefully or with undue optimism at pleading time, sometimes fails to develop at the trial, but a party is not required to prove every fact issue alleged, Barber v. Todd, Mo.App., 128 S.W.2d 290, 293 [5], under pain of being impeached and discredited.”

In the cases cited and relied upon by defendant, the abandoned or amended pleading bore on an issue remaining in the case. Thus in Meriwether v. Publishers, 224 Mo. 617, 123 S.W. 1100, the abandonment of a defense of truth in a libel action in favor of a defense of privilege was held to bear upon the issue of malice. In Carter v. Matthey Laundry & Dry Cleaning Co., Mo.Sup., 350 S.W.2d 786, and Robinson Steel Const. Co. v. White, Mo.App., 305 S.W.2d 58, the subsequent addition of an answer of additional grounds of defense was permitted to show that the subsequent defenses, relied upon at the trial, were only afterthoughts, not advanced in good faith.

Our reference to the court’s remarks upon the original objection of plaintiff to the use of the pleadings on the loss of earnings matter is sufficient to dispose of the defendant’s claim that plaintiff’s attorney waived any right to claim error in the introduction of the pleadings into evidence. The court at that point told plaintiff’s attorney that defendant would be permitted to use the pleadings. We regard plaintiff’s action thereafter as an effort to follow the court’s admonition to “counteract it in any way you see fit.” We do not consider the subsequent efforts of plaintiff’s counsel, in such situation, to constitute a waiver.

The order granting a new trial is affirmed and the cause remanded.

HOUSER, C., concurs in result.

HIGGINS, C, concurs.

PER CURIAM.

The foregoing opinion by WELBORN, C., is adopted as the opinion of the Court.

HOLMAN, P. J., HENLEY, J., and HAYES, Special Judge, concur.

SEILER, J., concurs in result.


author: SAMUEL E. SEMPLE, Special Judge.

text:
    Donald Dean JONES, Appellant, v. MIDWEST PRE COTE COMPANY, a Corporation, Respondent.
    No. 52046.
    Supreme Court of Missouri, Division No. 1.
    March 13, 1967.

      Arthur J. Kase, Rubins, Kase & Rubins, Kansas City, for appellant.
    Donald E. Willson, Madden & Burke, Kansas City, for respondent.
   SAMUEL E. SEMPLE, Special Judge.

Plaintiff recovered a verdict and judgment for $25,000.00 for personal injuries sustained in a collision which occurred in an underground limestone quarry of defendant between a truck operated by plaintiff and a vehicle called a “dumpster” operated by an employee of defendant. Defendant’s Motion for New Trial was sustained by the trial court for the sole reason that the verdict of the jury was a quotient verdict. Plaintiff has perfected this appeal from the trial court’s order granting defendant a new trial assigning as error the finding of the trial court that the verdict of the jury was a quotient verdict. Defendant contends that the order granting a new trial was proper not only for the stated reason of the trial court but for the additional reason that Instruction No. 3 offered by plaintiff and given by the court was erroneous because there was no evidence to support one theory of negligence submitted in the instruction.

Plaintiff, a truck driver employed by an independent contractor, was injured on August 31, 1962, in a collision between the truck he was operating and a vehicle called a dumpster operated by an employee of defendant. The accident occurred in an underground rock quarry owned and operated by defendant. Plaintiff was driving in a westerly direction along a roadway inside the quarry approaching an intersecting north-south roadway. Clarence Owens, an employee of defendant, driving a dumpster, a vehicle used for hauling rock inside the mine, was driving in a northerly direction on the north-south roadway. The dumpster turned right at the intersection to proceed east and in making the turn the left front corner of the dumpster collided with the left side of the bed and left rear wheel of plaintiff’s truck. Plaintiff was thrown out of the right door of the cab of his truck by the force of the impact.

The southeast corner of the intersection was formed by a large rock pillar which created a blind intersection for vehicles approaching from the south and the east. The traveled portion of the east-west road on which plaintiff was driving was 26 to 28 feet wide. As plaintiff approached the intersection he testified that he was traveling on his right-hand side of the road about five, ten or possibly thirteen miles per hour. When the front of his truck reached a point 36 to- 38 feet east of the east line of the intersection he observed the front of the dumpster then traveling in a northerly direction even with the south line of the intersection and approximately five feet west of the rock pillar at the southeast corner of the intersection. The driver of the dumpster, Owens, testified that as he traveled north, he first observed plaintiff’s truck when he started to turn right. He observed only the chrome on the right headlight of the truck because his view was obstructed by the pillar. Owens stated that at the time he first saw the truck the dumpster was traveling ten to twelve miles per hour. He further stated that at that speed a loaded vehicle could be stopped in twelve, possibly fifteen feet. In making the turn Owens testified that he did not turn his vehicle as far to the right as he intended. At the time of impact plaintiff’s truck was facing to the west and the dumpster was headed in a northeast direction. Other facts will be stated as are necessary.

The verdict returned in the case was signed by nine members of the jury. Defendant’s Motion for New Trial had attached thereto the affidavits of two of defendant’s attorneys which stated in substance that shortly after the jury returned its verdict they went into the jury room and found certain papers in the wastebasket among which was a paper, containing figures, which was attached to the motion and marked Exhibit 1. One of the affidavits stated that the paper marked Exhibit 1 was shown to Victor L. Thompson, foreman of the jury, and was identified by him as being in his handwriting.

Exhibit 1 was as follows:

The trial court filed a memorandum of its findings at the time the order was made granting a new trial for the reason that the verdict of the jury was a quotient verdict, which memorandum reads in part as follows:

“* * * While it is true that our courts long have held that a party who attacks a verdict upon the ground that it is a quotient verdict must show that there was a prearrangement among the jurors to accept an unknown, unascer-tained quotient as their verdict and that further a presumption arises that there was no such prearrangement among the jurors, yet this Court feels that under the evidence produced in the motion for new trial the paper writing in the foreman’s handwriting shows twelve amounts set down in a column, the total of those amounts taken and then divided by twelve, with a resulting quotient, which amount later was the amount of the verdict, were such circumstances that the presumption can be and is overcome and that an overpowering implication then arises that the jurors did agree in advance that each juror should set down the amount that he thought the verdict should be and that said amounts should be added and then divided by twelve and that the unknown figure would be accepted as the verdict of the jury. * * * ”

Defendant argues in support of the ruling of the court that Exhibit 1 clearly shows that the jury did take a total of twelve suggested figures and divided that total by twelve to arrive at an average or quotient of $25,000.00, and that because the verdict of the jury was for $25,000.00 a reasonable inference may be drawn that there was an agreement in advance to accept an unknown and unascertained quotient as their verdict. This contention is not well taken.

The law in Missouri respecting quotient verdicts is well settled. It has been held that a verdict arrived at by a prearranged agreement among the jurors to be bound by the result of the averaging of the individual estimate of the jurors, amounts to misconduct on the part of the jury and such a verdict should not be permitted to stand. Thompson v. City of Lamar, 322 Mo. 514, 17 S.W.2d 960, 976. However, it is the well-established and settled rule in this state that to establish a verdict as a quotient verdict it must be shown that there was a prearranged agreement among the jurors to accept the unknown and unascertained quotient as their verdict, and the presumption is that there was no such prearrangement among the jurors. Thompson v. City of Lamar, supra, and cases therein cited; Kamo Electric Co-operative v. Earnest, Mo.App., 277 S.W.2d 876, 878. It is also well settled that if the jurors have not bound themselves beforehand to accept the unascertained quotient as their verdict, but after the quotient is ascertained it is then adopted as their verdict, the fact that they used that method of reaching an agreement will not invalidate their verdict. Kamo Electric Co-operative v. Earnest, supra; Chrum v. St. Louis Public Service Co., Mo., 242 S.W.2d 54, 56.

Exhibit 1 attached to the Motion for New Trial is the only evidence submitted that can possibly offer any explanation as to how the jury arrived at their verdict. This exhibit contains four different columns or groups of figures. On the left side of the page is a column of twelve figures with a total of 301,000 which is divided by twelve with a quotient of 25,000 beside it, although the exact quotient is 25,080. To the right is another column of twelve figures with ten of the figures bracketed with a figure of $22,000 beside the bracket, and below the column is the figure “25,000” with “Avg” written beside it. Below these two columns is a column subtracting 80,000 from 301,000 with a figure below the line of 22,100 and then an encircled figure “$22,000” to the side. On the right side of the paper is another column or group of four figures with the figures “$16,000”, “$35,000” and “$20,-000” with lines drawn through them and the figure “$25,000.00” below.

It is apparent from examining all of the computations and figures contained on Exhibit 1 that the jury considered several different amounts while deliberating, such as $25,000, $22,000, or possibly $16,000, $35,000 and $20,000. Only nine of the twelve jurors signed the verdict, so if the twelve figures in each of the two large columns were suggested amounts put down by each of the twelve jurors the approximate quotient (as contrasted to the exact quotient of $25,080) could not be the result of an agreement in advance by the entire jury to accept an unknown and unascertained quotient.

Taking into account the circumstance that the jury considered several different amounts, coupled with the circumstance that only nine members of the jury rendered a verdict in the same amount as the approximate quotient of the total of twelve suggested amounts, it can no more reasonably be inferred that the nine members of the jury agreed in advance to accept such quotient as their verdict than that the nine members of the jury subsequently agreed to adopt such quotient, which of course would not render the verdict invalid. Chrum v. St. Louis Public Service Co., Mo., 242 S.W.2d 54, 56. It is con-' eluded that the evidence presented is insufficient to overcome the presumption that there was no prearrangement among the nine jurors to accept an unknown and un-ascertained quotient as their verdict. The court erred in holding the verdict to be a quotient verdict.

Defendant contends that Instruction No. 3 offered by plaintiff and given by the court was erroneous for the reason that the instruction is submitted in the disjunctive on two theories of negligence and there was no evidence to justify the giving of the second theory of negligence. The pertinent portion of the instruction reads as follows:

“Your verdict must be for plaintiff if you believe:
“First, defendant’s driver, Clarence Owens, either drove at an excessive speed, or knew or by the use of ordinary care could have known that there was a reasonable likelihood of collision in time thereafter to have stopped or slackened his speed and swerved but Clarence Owens failed to do so, and * *

Defendant’s specific complaint is that there was no substantial evidence to support the submission of failure to stop, slacken speed, or swerve. Defendant argues that the duty to take evasive action hypothesized in the instruction to have stopped, or slackened his speed and swerved does not arise upon the mere approach and entrance to an intersection but that the duty only arises at the time when he had the opportunity, in the exercise of ordinary care, to have observed the likelihood of a collision to thereafter have time to stop, slacken his speed and swerve. Greenwood v. Bridgeways, Inc., Mo.App., 243 S.W.2d 111, 114. Defendant further argues that under the evidence that from the time the dumpster operator first saw plaintiff’s truck and plaintiff first saw the dumpster until the collision, the dumpster traveled only 19 feet while during the same time plaintiff’s truck traveled thirty-six to thirty-eight feet. Defendant then draws the conclusion that there were no circumstances prior to the time when both drivers saw the other which gave rise to a duty upon the dumpster operator to take evasive action to avoid a collision and that after the dumpster operator first saw plaintiff’s truck there was no opportunity to take evasive action to avoid collision.

The point is not well taken. In considering whether plaintiff made a sub-missible case on the theory of negligence submitted, the evidence must be considered in the light most favorable to the plaintiff and take plaintiff’s evidence as true, where it is not entirely unreasonable or opposed to physical laws, and to give plaintiff the benefit of all reasonable inferences arising from all the evidence. Foster v. Kansas City Southern Railway Co., Mo., 306 S.W.2d 521, 522.

There was evidence that at the time the dumpster operator first observed plaintiff’s truck he was at the south line of the intersection about five feet west of the pillar forming the southeast corner of the intersection starting to turn north and traveling about ten to twelve miles per hour. The point of impact was shown to be about eighteen to nineteen feet east of the east line of the intersection, and plaintiff’s truck was on the north side of the east-west road which was twenty-six to twenty-eight feet wide. Thus, after the dumpster operator first saw the plaintiff’s truck, his vehicle, in making the turn to the north, traveled at least thirteen to fourteen feet north and twenty-three to twenty-four feet to the east before the left front corner of the dumpster struck the left rear wheel and bed of the truck. There was evidence that a loaded vehicle traveling ten to twelve miles per hour would be able to stop in twelve, possibly fifteen feet and that the dumpster operator did not turn his vehicle as far to the right as possible when he first saw the truck. The dumpster operator was turning east on the east-west road when he first observed plaintiff’s truck. The south half of the east-west road, approximately thirteen to fourteen feet in width, was unobstructed so that by swerving to the right or south side of the east-west road the dumpster could have avoided colliding with plaintiff’s truck. It is concluded there was sufficient evidence to support the submission of failure to stop, slacken speed, or swerve as set out in Instruction No. 3.

The order granting a new trial is reversed and the cause is remanded with directions to reinstate the verdict and judgment for plaintiff.

PER CURIAM.

The foregoing opinion by SAMUEL E. SEMPLE, Special Judge, is adopted as the opinion of the Court.

All concur.


text:
    STATE of Missouri, Respondent, v. John Sherman MILES, Appellant.
    No. 52178.
    Supreme Court of Missouri, Division No. 1.
    Feb. 13, 1967.
    Motion for Rehearing or to Transfer to Court En Banc Denied March 13, 1967.

      Robert G. Duncan, Pierce, Duncan, Beit-ling & Shute, Kansas City, for appellant.
    Norman H. Anderson, Atty. Gen., Jefferson City, Floyd L. Sperry, Jr., Sp. Asst. Atty. Gen., Clinton, for respondent.
   HOUSER, Commissioner.

John Sherman Miles, convicted of “Stealing over Fifty Dollars” and sentenced to 7 years’ confinement, has appealed from the judgment and sentence.

First, he attacks the validity of the information, contending that it is fatally defective; that in order for him to prepare his defense and to afford him due process of law he should have been advised of the specific manner in which he is alleged to have stolen the property; that the information fails to allege the essential elements of the offense; that there is no allegation of a “taking” or a “carrying away,” or that he stole the property with the intent to permanently deprive the owner thereof, or to convert it to his or someone else’s use; that it fails to allege any other “manner of stealing,” and fails to notify him of the charge against him.

The information charged one prior offense and that appellant did “unlawfully, feloniously and intentionally steal certain property, to-wit: one (1) John Deere 1964 Diesel farm tractor, serial number 71238, of the value of Seven Thousand Dollars ($7,-000.00), the property of one Tom Effertz, without the consent of the owner thereof * * * if

This is a charge under § 560.156, which in one comprehensive section undertakes to deal with all of the various forms of stealing previously interdicted in several statutes. The charge is laid under the first alternative of paragraph 2, which makes it unlawful “for any person to intentionally steal the property of another, either without his consent or by means of deceit.” Paragraph 1(2) of that section provides that “Steal” shall mean “ * * * to appropriate by exercising dominion over property in a manner inconsistent with the rights of the owner, either by taking, obtaining, using, transferring, concealing or retaining possession of his property.”

The information is sufficient. It clearly and specifically charges the offense prohibited by paragraph 2 of § 560.156. No longer is the conventional language “steal, take and carry away,” approved without further elaboration in State v. Murchie, Mo.Sup., 225 S.W. 954, necessary. Allegations of caption and asportation are not now essential to the validity of an information charging stealing. The word “steal” when applied to property has a well-defined meaning, “ * * * a uniform significance, and in common as well as legal parlance means the felonious taking and carrying away of the personal goods of another.” The American and English Encyclopedia of Law, Vol. 23, p. 555, quoted with approval in State v. Richmond, 228 Mo. 362, 128 S.W. 744, 745. And see State v. Chambers, Iowa Sup., 1849, 2 Green (Iowa) 308. It means “to take and carry away, feloniously; to take without right or leave, and with intent to keep, wrongfully.” State v. Zammar, Mo.Sup., 305 S.W.2d 441, citing and quoting from State v. Dewitt, 152 Mo. 76, 53 S.W. 429. “Steal” signifies a taking which at common law would have been denominated felonious, and imports the common-law offense of larceny. State v. Richmond, supra. The intent to wrongfully take and carry away and keep inheres in the word “steal.” “In order to find a defendant guilty under [an information charging that defendant did ‘steal’], a taking and carrying away must be proved. So under this [information] it was no less necessary to prove a taking and carrying away, than if these words had been inserted in the [information]. And the burden of proof was not changed in any particular.” Green v. Commonwealth, Sup. Jud., 111 Mass. 417,1. c. 419. It is not necessary to charge an intent to convert the property to defendant’s use or to deprive the. owner permanently thereof. State v. Hamlin, Mo.Sup., 171 S.W.2d 714 [3]; State v. Martin, 357 Mo. 368, 208 S.W.2d 203 [1]. A charge that defendant “did intentionally steal” is sufficient and needs no elaboration or further specification as to the mode, method or manner of the larceny. “It is not necessary that the manner in which the stolen property was taken and carried away should be alleged unless the statute under which the indictment is drawn limits the offense to a particular method.” 52 C.J.S. Larceny § 75. This information, which follows the language of the statute, adequately notified defendant of the nature of the offense with which he was charged. A conviction under this information would bar another prosecution for the same offense.

This case does not come within the qualification to the general rule referred to in State v. Kesterson, Mo.Sup., 403 S.W.2d 606 [1], that where the statute creating the offense uses generic terms in defining the offense and does not individuate the offense with such particularity as to notify the defendant of what he or she is to defend against, the indictment or information must specify the offense with which the defendant is charged; must charge in detail what happened, and affirmatively recite the conduct alleged to constitute stealing. Kes-terson was not an ordinary case of stealing property. It involved a specialized form of stealing: stealing by means of deceit. It stands to reason that in charging a special or extraordinary form of the crime, such as stealing by embezzlement, larceny by trick, obtaining money or property by false pretenses, etc., the defendant should be notified by the indictment or information of the nature of the evidence with which he will be confronted, in greater detail than by merely using the words of the statute. In such case the state must allege how or in what manner the stealing was effected by the deceit, trick, false pretense or embezzlement. There is no necessity of detailed specification in charging an ordinary theft of property.

Next, appellant assigns error in refusing to permit the service of a subpoena on the court reporter of another division of the circuit court to compel his appearance as a witness on behalf of the appellant and the production of his shorthand notes for the purpose of impeaching the testimony of the state’s principal witness, Delane Long, and that of Long’s wife Judy. Long had testified in the other division a week earlier in this same case in a proceeding which resulted in a mistrial. In offering to have the subpoena served appellant’s counsel related that from the court reporter’s notes he could prove “numerous contradictions and discrepancies” between the testimony of the Longs given at this trial and that given a week previously. In particular, appellant asserted that through the court reporter he could show (1) that Long previously testified that when the stolen tractor was unloaded in the pasture adjacent to his house, one John Miles (who had assisted in the theft) “went his separate way” and that Long had returned to his house alone, whereas at this trial Mrs. Long had testified that after the tractor was unloaded Miles and her husband came into the house and talked about the tractor; (2) that Long previously testified that three persons were present when the tractor was stolen (Long, Long’s son and the defendant), whereas at this trial neither he nor his wife “made any mention whatsoever of this fact”; (3) that Long previously testified that when they were preparing to steal the tractor they parked on a north-south road and walked a few feet to get to the tractor, whereas at this trial Long testified that it was an east-west road and that the distance walked was “somewhat different.” There is no error in excluding offers of proof or evidence tending to impeach a witness on an immaterial or collateral matter. State v. Easley, Mo.Sup., 338 S.W.2d 884 [4], Mo. Digest, Witnesses, The suggested discrepancies related to matters which were immaterial and inconsequential. They were not pertinent to the issues as developed, Hamburger v. Rinkel, 164 Mo. 398, 64 S.W. 104, and were of no material significance in the case.

Finally, it is urged that “The court prejudicially erred in allowing the jury to separate overnight, after defendant had specifically requested that the jury not be allowed to separate.” Before the trial commenced, in chambers, defendant requested that the jury not be allowed to separate. The court said “Very well.” A venire of jurors was then examined on voir dire, and after the examination was completed the court allowed the members of the jury panel to separate and go home for the night. Before they separated the court properly instructed the prospective jurors as to their duties during that adjournment. An objection was made to the separation of the jurors “after the case has been discussed in voir dire.” The objection was overruled. The next morning the jury was selected and sworn to try the case.

Prior to the trial defendant had moved for a continuance on the ground that because of widespread publicity given the case, it would be prejudicial to defendant to go to trial at that time. It is now urged that this points out the reason for the request that the jury not separate. Appellant cites § 546.220, authorizing the trial court in felony cases to place all jurors found to be competent to sit in the trial in charge of an officer of the court until the entire panel is made up, the peremptory challenges made, and the jury sworn to try the cause, and § 546.230, providing that with the consent of the prosecuting attorney and defendant the court may permit the jury to separate at any adjournment or recess of the case during the trial of felony cases, except capital cases. It was not alleged nor was it shown that any of the prospective jurors read any newspaper accounts of the trial, or that any person discussed the case with any of them or that any prospective juror was subjected to any adverse influence during the overnight adjournment. “It is apparent at once that, under the provisions of this section [now § 546.220], the trial court ‘may,’ in its discretion, keep all qualified jurors, in felony cases, in the custody of an officer of the court, or permit them to separate, pending the selection and swearing of twelve jurors to try the case, and this court has so held. State v. Todd, 146 Mo. 295, 47 S.W. 923; State v. Fox (Mo.Sup.) 300 S.W. 820.” State v. Golden, 330 Mo. 784, 51 S.W.2d 91, 94. In Golden the circuit court overruled defendant’s request that the jurors who had been qualified, but who had not been sworn in, be kept together under the charge of the sheriff, and on appeal this court ruled that whether the trial court shall place the jurors in custody on request of counsel is a discretionary matter. As in that case, so in this, there being nothing in the record to indicate that the separation of the qualified jurors “was in any wise prejudicial to the defendant,” we cannot justly say that the trial court abused its discretion in overruling the objection to the separation.

We have held that the information properly charged the offense of stealing. It was also sufficient to charge defendant under the habitual criminal act, § 556.280. The verdict, finding defendant “guilty of Stealing over Fifty Dollars, as charged in the information filed in lieu of the indictment,” is not correct in form because it does not state that the jury found the defendant guilty of stealing property of the value of at least fifty dollars. § 560.161. The substitute information, evidence and instructions, however, clearly show that the defendant was charged, tried and convicted of stealing property of the value of more than fifty dollars, and under the rulings in State v. Webb, Mo.Sup., 382 S.W.2d 601, and State v. Mitts, Mo.Sup., 347 S.W.2d 677 [3], this defect in the verdict is not fatal. The court received and considered duly authenticated copies of the records pertaining to the previous conviction of defendant, including the opinion and mandate of the supreme court in the former trial, together with a picture of defendant and other identification, and ruled that the evidence was sufficient to proceed against defendant under the habitual criminal act. The 7-year sentence is within the range of punishment (imprisonment in the penitentiary for not more than ten years nor less than two years) prescribed by § 560.161, paragraph 1(2), for the offense of which defendant was convicted. Defendant was present and was represented by an attorney throughout the trial, at the time of granting allocution and passing of sentence, and he was represented by counsel on appeal.

The judgment is unexceptional, is responsive to the verdict and is affirmed.

WELBORN and HIGGINS, CC., concur.

PER CURIAM.

The foregoing opinion by HOUSER, C., is adopted as the opinion of the court.

All of the Judges concur.

      . All section references are to RSMo 1959, V.A.M.S., except where otherwise noted.


author: HENLEY, Judge.

text:
    STATE of Missouri, Respondent, v. Alvin Buddy MEIERS, Appellant.
    No. 51615.
    Supreme Court of Missouri, Division No. 1.
    March 13, 1967.

      J. Whitfield Moody, J. Arnot Hill, The Legal Aid and Defender Society of Greater Kansas City, Kansas City, for appellant.
    Norman H. Anderson, Atty. Gen., Jefferson City, C. H. Parsons, Jr., Sp. Asst. Atty. Gen., Dexter, for respondent.
   HENLEY, Judge.

Defendant was charged by amended information as an habitual criminal with unlawful possession of narcotic drugs. Sections 556.280 and 195.020, RSMo 1959, V.A. M.S. Trial was before a jury on May 4 and 5, 1965. Before submission of the case to the jury, the court found that defendant had been convicted previously of a felony, sentenced and imprisoned therefor. The jury found him guilty and the court thereafter assessed his punishment at imprisonment for seven years. Defendant appeals from the ensuing sentence and judgment.

He was represented at the trial by counsel of his own choice. His counsel filed a motion for new trial; after this motion was overruled, sentence imposed and judgment entered, counsel filed a timely notice of appeal. On defendant’s motion, he was permitted to perfect his appeal as a poor person and other counsel was appointed to represent him on appeal; he was furnished a transcript at the cost of the state. Counsel appointed by the court has filed a brief and presented oral argument in defendant’s behalf. In addition to his counsel’s brief, we have a brief prepared by defendant in which he raises points in addition to that raised by his counsel.

Defendant presented no evidence. The state’s evidence showed that on January 6, 1965, Detectives Robert Jenkins, Donald Grasher and Leo Caulfield of the Narcotics Detail of the Kansas City, Missouri, Police Department, and Inspector Harold Leap of the U. S. Food and Drug Department, received information from one Charles Victor Osborne that defendant, Alvin Buddy Meiers, was in possession of certain narcotic drugs in the latter’s apartment at 3220 Harrison Street, Kansas City, Missouri. Under authority of a search warrant issued by a Jackson county Magistrate these four officers, in the presence of defendant and his girl friend, searched defendant’s apartment on the afternoon of January 6, and found and seized nine-tenths of a gallon of paregoric containing morphine and opium, and one hundred thirty-eight tablets and capsules containing a codeine compound, a derivative of opium. Defendant was served with a copy of the warrant, arrested and taken to police headquarters.

We quote the one point relied on in the brief and argument of defendant’s counsel: “The court erred in receiving evidence from the police officers of defendant’s incriminating oral statements when it appeared that before questioning him they had not informed him that any statement he might make could be used against him. In receiving such evidence the defendant was denied rights guaranteed him by the fifth and sixth amendments of the Constitution of the United States.” No mention is made in argument of denial of his Sixth Amendment right to counsel, the argument being confined to denial of his Fifth Amendment right to remain silent.

The evidence to which defendant refers is the testimony of Inspector Leap and detectives Jenkins and Grasher regarding an occurrence in defendant’s apartment during the search or immediately after all the narcotic drugs were found. Inspector Leap was asked whether he heard the defendant make any statements at the apartment. His reply was: “Yes, I heard Sergeant Jenkins ask him — ask Mr. Meiers if the drugs were his. I can’t quote Mr. Meiers’ answer verbatim, however, he indicated they were his and Sergeant Jenkins knew it or he wouldn’t have been there, something to that effect.” After this answer, defendant objected on the sole ground that “The witness is stating a conclusion.” The objection was' overruled. No motion was made to strike the answer or to instruct the jury to disregard it on the grounds that this evidence should be excluded because defendant had not been informed by the officers of his right to remain silent or “that any statement he might make could be used against him." Detective-Sergeant Jenkins testified that during a discussion with defendant at the apartment “He [defendant] told me they [the narcotics] were his;” that defendant’s exact words were: “You know they are mine, or you wouldn’t be here.” No objection was made to this testimony. The same testimony was elicited on cross-examination by defense counsel. Detective Jenkins further testified on cross-examination that he did not advise defendant of his right to remain silent before defendant made the above statement. Detective Grasher, in his testimony, related essentially the same statement made by defendant, without objection.

The only assignment of error in defendant’s motion for new trial which conceivably might direct the trial court’s attention to the one point briefed in this court by his counsel is: “The court erred in admitting over defendant’s objections, irrelevant, immaterial and incompetent evidence and testimony.” Defense counsel frankly admits in his brief and argument that no obj ection was made to this testimony at the trial; that this general assignment of error does not comply with Criminal Rule 27.20(a), V.A.M.R., and, therefore, preserved nothing for review. The state concedes that defendant was not advised by the officers of his right to remain silent, but contends that this point may not be considered because not preserved for review. Defendant contends, contra, we may, and should, consider and review the point under Criminal Rule 27.20(c), because manifest injustice and a miscarriage of justice has resulted from permitting these officers to relate to the jury this statement or admission of the defendant.

We are mindful of our Rule 27.20(c), commonly referred to as the “plain error rule,” and cognizant of our recent case of State v. Beasley, Mo., 404 S.W.2d 689, 690 [2]. The circumstances in which the court applied that rule in Beasley are to be distinguished from the circumstances of this case. In Beasley an objection had been made to the admission in evidence of a signed statement of defendant on the ground that it was involuntary; the court held a hearing on the question of its voluntariness outside the presence of the jury and ruled that it was voluntary; an untimely motion for new trial was filed assigning the same question as error and the trial court had an opportunity to and did take up and hear the motion, and overruled it. In the instant case no objection was made at the trial to the admission in evidence of defendant’s reply to the officer’s question made in his home at the time of arrest; consequently, since no contention was made that his admission was involuntary, no hearing was held on its voluntariness. Also, as stated, defendant timely filed a motion for new trial, but he did not assign as error and call to the trial court’s attention the point he now raises for the first time on appeal.

We do not construe State v. Beasley, supra, as holding that where, as here, the question of violation of rights under the fifth amendment to the federal constitution is raised for the first time on appeal we must and shall in every case abandon other time-tried and tested reasonable rules of trial and appellate practice to invoke, sua sponte, or at defendant’s request, the plain error rule. Since its adoption we have invoked Rule 27.20(c) on a case to case basis to prevent “manifest injustice or miscarriage of justice,” and we shall continue to do so where substantial rights are affected whether or not the error is “ * * * raised in the trial court or preserved for review, or defectively raised or preserved * * But there must be a sound, substantial manifestation (not perceivable here), a strong, clear showing, that injustice or miscarriage of justice will result if the rule is not invoked. We shall not invoke the rule in every case where it is claimed for the first time on appeal that this or similar state or federal constitutional rights have been violated, or for that matter, in every case where it may appear for the first time on appeal that such rights in fact have been violated.

Our rule is that constitutional questions must be raised in the trial court at the earliest opportunity consistent with orderly procedure; they may not be raised for the first time in the appellate court. The defendant in a criminal case, if he proposes to raise a question pertaining to the violation of such right, must object to the introduction of his confession or admission, clearly and specifically stating his constitutional grounds for the objection; otherwise, the introduction of his confession or admission will not be sufficient basis for an assignment of error in his motion for new trial. His motion for new trial must present and direct the trial court’s attention to his trial objections by clearly stating with particularity his constitutional grounds. In other words, his constitutional grounds for objection must be kept alive and preserved throughout the case. State v. Smith, Mo., 310 S.W.2d 845, 850-851 [6-7]; State v. Johnstone, Mo., 335 S.W.2d 199, 207 [18-19]; Stembridge v. State of Georgia, 343 U.S. 541, 72 S.Ct. 834, 96 L.Ed. 1130; Michel v. State of Louisiana, 350 U.S. 91, 76 S.Ct. 158, 100 L.Ed. 83. To abandon these rules would be to invite a defendant to sit back, elect not to object to his constitutionally inadmissible confession or admission, take his chances that the verdict might be acquittal; then, if the verdict is adverse, raise the question of denial of constitutional rights for the first time on appeal with some assurance that the case would be remanded. Only by adhering to these rules and decisions may we prevent such tactics. However, failure of defendant to follow these rules of trial and appellate practice does not preclude our consideration of plain errors affecting substantial rights when we deem that manifest injustice or miscarriage of justice has resulted therefrom.

We decline to invoke Criminal Rule 27.20 (c) in this case. The point is ruled against defendant.

The two cases cited by counsel in support of his one point are not applicable to the facts in this case for the same reasons as those stated in State v. Dixon, Mo., 411 S.W.2d 185 (Division One opinion handed down February 13, 1967).

Defendant, pro se, contends in his separate brief that constitutional rights of due process of law and equal protection of the laws were denied him, because: (1) the search warrant was illegally issued; (2) his arrest was illegal, because based on an illegal search warrant; (3) he was not accorded a preliminary examination; (4) the court was without jurisdiction, because he was not accorded a preliminary examination; (5) he was not accorded the right of confrontation of a witness against him; (6) the testimony of Detective Jenkins was perjured; and, (7) the second amended information was insufficient. None of these points were presented in his motion for new trial and, therefore, are not preserved for review. State v. Brookshire, Mo., 353 S.W.2d 681, 685 [10]; Criminal Rule 27.20, V.A.M.R. However, we review the sufficiency of the information whether or not the question of its sufficiency is presented in the motion for new trial. Criminal Rule 28.02, V.A. M.R.

We have examined the information; it is sufficient. Like informations were approved in State v. Virdure, Mo., 371 S.W.2d 196, 198-199 [1], and State v. Worley, Mo., 375 S.W.2d 44, 47 [8].

We note in defendant’s brief, pro se, that he is “ * * * aware of the existence of an eighth point namely, the ineffective assistance of [trial] Counsel and of his right to present such point * * but, that he elects “ * * * to stand upon the merits of the seven points presented * * * ” in his brief.

Our examination of other matters we review under Rule 28.02 discloses no error.

The judgment is affirmed.

All concur.

      . Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977; Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.


author: HIGGINS, Commissioner.

text:
    Velma A. KOEPKE, Appellant, v. KOSS CONSTRUCTION COMPANY, a foreign corporation, and William Orville Prater, Respondents.
    No. 52154.
    Supreme Court of Missouri, Division No. 1.
    March 13, 1967.
    Tweedie Fisher, Jefferson City, for appellant.
    Northern & Crow, Rolla, for respondents.
   HIGGINS, Commissioner.

Action for $25,000 damages for wrongful death. Verdict was directed for defendants at the close of plaintiff’s case.

The only question is whether plaintiff made a submissible case for the jury and, in determining that issue, the evidence is to be considered in the light most favorable to plaintiff, giving her the benefit of all reasonable inferences. Brown v. Wooderson, Mo., 362 S.W.2d 525, 526 [1], 99 A.L.R.2d 894.

Plaintiff is the widow of Otto W. Koepke who died September 24, 1964, at the time of a collision between a motor vehicle driven by Mr. Koepke and a motor vehicle owned by defendant Koss, driven by defendant Prater. Plaintiff alleged that her husband was driving south on Highway No. 19, approximately three miles south of Owens-ville, Missouri, “commencing to make a left turn into a road and at said time and place defendant William Prater was operating a truck in a southerly direction and in such a manner as to carelessly and negligently cause or permit to cause the same to violently collide with the vehicle operated by plaintiff’s husband * * *.”

The specific negligence charged to defendants was failure to keep the Koss motor vehicle under control under the circumstances; excessive speed under the circumstances; failure to keep a lookout; and failure to give timely or adequate warning of the approach and movement of the vehicle.

Defendants admitted that Mr. Koepke died as a result of the collision and that the vehicle which collided with Mr. Koepke was owned by defendant Koss and operated by defendant Prater within the scope of his employment by defendant Koss.

Velma A. Koepke testified that she was the widow of Otto Koepke; that he died September 24, 1964; that she was his wife at the time of his death; that he was the sole support of her and their four children; that he earned between forty-five hundred and five thousand dollars a year; that he was 42 years of age at his death. She did not see or “know anything about the accident,” but had talked to a Mrs. Souders who was an eyewitness. Mrs. Souders was not called to testify and the only other witness was Everett H. Cunio, a fellow employee of Mr. Koepke.

Mr. Cunio was a master mechanic employed at Owensville, Missouri, by Allied Chemical, General Chemical Division. On September 24, 1964, at “sometime after 10 :- 00 o’clock,” he went to a scene on Highway 19 where two vehicles were involved .in a collision. “I found our — our prospecting truck and this Koss Construction Company vehicle. * * * they were located just— just south of the gravel road where Mr. Koepke was intending to turn off and approximately, I would say, around four hundred feet from the mailbox that you were referring to a while ago in your talk.” (Reference is to defendants’ opening statement describing a “mailbox approximately three hundred to four hundred feet * * north of the driveway which the Koepke truck — into which the Koepke truck was attempting to turn.”)

“Q. On which side of the road ? A. On the left-hand side of the road.
“Q. And was there a turn-off there? A. Yes, there was.
“Q., * * * does this highway run generally north and south? A. Yes.
“Q. And which direction of the highway —of this turn-off — was this a gravél road? A. Yes.
“Q. And this was what, on the east or the west side? A. On the east side of the road.”

Mr. Cunio found the vehicles south of the gravel road and, asked to describe the vehicles, testified:

“A. Well, if I recall, his — the tandem (the Koss vehicle) was almost — I guess you’d call it — not the tandem, but the flat bed (decedent’s vehicle) was going north and south, and the truck — the truck was facing east and west with the radiator towards the west.
“Q. Can you tell the jury whether that truck — whether the tractor or the trailer or both had evidence of damage? * * * A. Well, the truck, as well as I recall, this truck had the two separate fuel oil tanks torn off the side, and the — the truck was in the ditch towards the highway — closer to the highway, but it was facing the west; it was south of our truck, of our prospecting truck, and it was — of course, it was — the front end was damaged pretty bad where it had — * * * It was — the front end was damaged pretty bad and the — of course, naturally the trailer was torn from the— from the tractor.
“Q. What part of the front end was damaged? A. Well, as I recall, the right front.”

He found the Koss truck “approximately twenty-five feet” south of the gravel road. The vehicle operated by Mr. Koepke “was setting north of the Koss Construction Company truck.”

Mr. Cunio identified pictures of the two vehicles. One showed Koepke’s flatbed truck with damage to the door and cab on the driver’s side, the left front wheel torn from the axle, and a large “drill rig” fallen from the bed of the truck. It also showed that vehicle in its position somewhat parallel to the east side of the road heading north, with the Koss tractor to its rear damaged on its right front corner. The other picture was a close-up of damage to the flatbed truck.

Mr. Cunio talked with defendant Prater at the scene and he said he had been going south, as was Mr. Koepke.

“Q. Did Mr. Crater (Prater) tell you that he saw a turn indicator light on the rig Mr. Koepke was operating? A. He definitely did. * * *
“Q. Did you or did you not ask Mr. Crater — or Mr. Prater whether or not he saw— A. I did, yes. Q. —turn indicator lights on? A. I did, yes.
“Q. Did Mr. Prater answer you? A. He did, yes.
“Q. What was his answer? A. He says T saw the indicator lights on, the directional signals.’
“A. And did Mr. Prater say anything else to you? A. Yes, he did. He said, ‘I didn’t think he was going to turn left.’ ”

It would be helpful if plaintiff had adduced other evidence, if available, on matters mentioned in the opening statement, such as debris, and Prater’s rate of speed, skid marks, and warning; even so, this evidence is sufficient to make a sub-missible case. A jury reasonably could find and infer that the deceased was operating his truck in a southerly direction on Highway 19 in a rural area south of Owensville; that he intended to turn left from the highway into a gravel road; that he signaled his intention to make such a turn by having his directional or turn signals operating; that he could make only a left turn because the gravel road made a “T” intersection with the highway and ran only to the east or left of the southbound plaintiff and defendant Prater; that defendant Prater was following to the rear of the decedent’s truck in his heavy tractor-trailer tandem truck and saw the turn signals operating on decedent’s truck; that, irrespective of that notice, he formed a judgment that decedent would not turn left; that the left side of decedent’s vehicle was exposed as the left turn was being made; that decedent’s path was then to the east or northbound side of the road and, while so exposed, decedent was struck on the left side of his truck by the right corner of defendants’ following vehicle; that the speed of the following vehicle was such that a violent impact occurred doing substantial damage to, and carrying, both vehicles to the east side of the road and south of the intersection; that decedent’s turn was completed to the extent that the directional force of the impact was far enough to the rear of his truck that it turned the truck to a northbound heading just to the south of the intersection as it was shoved to the east side of the road; that Prater’s speed was excessive under the circumstances in that he saw the turn warning, decided it did not mean what it said, and failed to stop or slow to avoid hitting decedent; that such excessive speed was the proximate cause of the collision. See Bear v. Devore, Mo.App., 176 S.W.2d 862, 864 [6]; Hillis v. Rice, Mo.App., 151 S.W.2d 717, 724 [4-6]; Block v. Rackers, Mo., 256 S.W.2d 760, 763 [4],

Respondents argue that Mr. Cunio’s testimony was only that he saw the turn indicator lights on and that it could mean the right, as well as the left, signal. The permitted inference is reasonable, however, because only a left turn could be made at this location. Respondents question also where Prater was when he saw the turn signals operating and suggest that a reasonable inference is that Prater saw them just as he started around decedent, but such an inference is strained in view of his seeing the turn signals in his following position in time to form a judgment that he did not think the decedent was going to turn left and to decide to disregard such signal.

Respondents contend further that Mr. Koepke was contributorily negligent as a matter of law in failing to keep a proper lookout and turning to the left when such movement could not be made with reasonable safety. The evidence of this case does not present that issue as one upon which reasonable minds could not differ, and thus it would be for the jury to resolve under proper instruction.

Judgment reversed and cause remanded.

HOUSER and WELBORN, CC., concur.

PER CURIAM:

The foregoing opinion by HIGGINS, C., is adopted as the opinion of the court.

All concur.