text:
    PARSONS CONSTRUCTION CO., Appellant, v. MISSOURI PUBLIC SERVICE COMPANY, and State Highway Commission of Missouri, Respondents.
    No. 52335.
    Supreme Court of Missouri, Division No. 2.
    Feb. 12, 1968.
    Motion for Rehearing or to Transfer to Court en Banc Denied March 11, 1968.

      Charles E. Rendlen, Jr., Rendlen & Rend-len, Hannibal, Eugene E. Andereck, Pickett, Andereck & Hauck, Trenton, Charles B. Blackmar, St. Louis, for appellant.
    Robert L. Hyder, Bruce A. Ring, State Highway Commission, Jefferson City, for defendant-respondent.
    N. R. Bradley, Ike Skelton, Jr., Lexington, Roscoe E. Moulthrop, Bethany, for defendant-respondent, Missouri Public Service Co., Bradley, Skelton & Schelp, Lexington, of counsel.
   STOCKARD, Commissioner.

Plaintiff has appealed from the judgment of the trial court rendered pursuant to jury verdict in favor of Missouri Public Service Company (hereafter referred to as defendant) and pursuant to a directed verdict in favor of the State Highway Commission of Missouri (hereafter referred to as the Commission). Plaintiff sought damages in excess of $60,000.

Plaintiff, a corporation engaged in the business of road construction, was awarded a contract by the Commission for the construction of a public highway, known as Route DD (also referred to as Route SDD) in Harrison County, of slightly more than seven miles in length. Located on the public right of way were 167 poles which were owned and used by defendant for the transmission of electric energy. Defendant knew of the proposed change in the highway, and on December 29, 1960, its representative inquired by letter of the Commission when the removal of its poles would be required. The reply was that the Commission did not propose to construct the highway in 1961, and that the Commission could not then say when the construction would be done, but that defendant would have sufficient time to prepare its plans following the completion of the design for the highway. In July 1961 defendant was sent a set of “plan and profile sheets” so it could plan the “pole line adjustment” necessary to conform to the construction of the highway, and defendant was further notified that the Commission planned to advertise for bids in the fall of 1961 and award a contract shortly thereafter. On December 28, 1961, the Commission advised defendant of the contract entered into with plaintiff, and stated that its resident engineer would advise defendant “as soon as the right-of-way on this project has been staked in order that you may complete your pole line removal.” On March 27, 1962 the Commission notified defendant that “the right-of-way staking has been completed,” and that “you may proceed with your pole-line relocation any time that is convenient with you.”

The contract between plaintiff and the Commission provided that the work should be completed within 70 “working days” after the date to be specified in a “Notice to Proceed” from the Commission, and it was further provided that should plaintiff fail to complete the work in the “time specified or such additional time as may be allowed by the Engineer under the contract,” liquidated damages should be charged against plaintiff in the amount of $35.00 per day.

Plaintiff was notified to proceed with the construction in January 1962. We cannot determine when the Commission started counting the 70 “working days,” but in April plaintiff was told by an agent of the Commission that “time was being charged.” At that time plaintiff had not started work.

Mr. George Parsons, president of plaintiff, and Mr. David Yohn, plaintiff’s foreman, testified that during April they had conversations with Mr. Dale Henry, a representative of defendant, and that he had assured them that the poles would be removed “right away.” It was on May 14 that plaintiff first moved any equipment to the project site, and its “heavy equipment” was moved there on June 18. At that time the poles had not been removed. Defendant’s work crew did some work in relocating the poles in May, but the men were taken off that job to work on new customer installation. In July defendant decided to have the electric line relocated under contract. The contractor started work in the latter part of July or early August, and the relocation of the poles was completed on August 28.

Plaintiff’s evidence tended to show that it was delayed in the construction work because of the presence of the poles in the right of way. The Commission stopped charging “work days” against plaintiff on July 6, because of the presence of the poles, and did not resume charging “work days” until August 28. Plaintiff completed the project on September 11.

Defendant’s evidence pertained primarily to the issue of damages, but it also showed that between July 15 and July 22 there were some “heavy rains,” and that there was “wet weather” in August. Defendant’s evidence also tended to show that the poles did not interfere with a substantial portion of the work. The electric line served local farms and communities, and service was continued during the process of relocation. Defendant points out in its brief that there was no evidence of the amount of time required to plan and design the line after the highway was staked, or of the amount or kind of material required, or of the labor and time required to relocate the poles while defendant continued to meet its public service obligations. Plaintiff points out, and contends this to be a judicial admission by defendant, that it was necessary that defendant obtain twenty-five easements where portions of the line would be relocated on private property.

Plaintiff alleged in its amended petition that the Commission had the “right, power and authority” to control the location of poles, electric transmission lines, and other equipment located on the public right of way, and that it is responsible for the removal of obstructions in the right of way and for the removal of poles and electric transmission lines located there hy public utilities. Plaintiff further alleged that the Commission “duly and properly notified” the defendant to' remove its poles from the right of way, and that it then “became the duty of the defendant * * * to comply with the notification to remove said lines, poles and equipment,” but that defendant “wrongfully and improperly failed to remove the transmission lines, poles and equipment from the construction area until the 28th day of August, 1962, * * * and by reason of the failure * * * [defendant] violated its statutory duty, Sec. 227.240 RSMo 1959 [V.A.M.S.],” and “created a public nuisance and obstruction in the public right of way,” and thereby delayed and impeded plaintiff in the performance of its work to' its damage in the sum of $66,258.38.

Defendant alleged that “it had no duty to the plaintiff” to remove or relocate its lines because the Commission had not properly served it, in the manner provided by Section 1.190 RSMo 1959 [V.A.M.S.], with the notice required by Section 227.240, and that the notice it did receive from the Commission did not comply with Section 227.240. Defendant further alleged that no hearing was held pertaining to the “proposed plan of relocation and matters incidental thereto concerning the lines, poles and wires” of defendant as provided in Section 227.240. The answer of the Commission will be mentioned later. Both the defendant and the Commission filed a cross-claim against the other in which each asserted that if plaintiff should recover, the other should be held solely responsible. The trial court directed a verdict against plaintiff and in favor of the Commission. Plaintiff’s case against defendant was submitted to the jury, and the result was a verdict in favor of defendant.

Instruction 2, plaintiff’s verdict directing instruction, was as follows:

“Your verdict must be for plaintiff and against defendant, Missouri Public Service Company, if you believe:

“First, defendent, Missouri Public Service Company maintained an electric transmission pole line in the right of way of Route ‘SDD’ in Harrison County, Missouri;

“Second, defendant, State Highway Commission entered into a contract with plaintiff for road improvements on the right of way of Route ‘SDD’ in Harrison County, Missouri, where the pole line was constructed ;

“Third, the defendant, State Highway Commission gave the defendant, Missouri Public Service Company notice to' move said pole line;

“Fourth, that defendant, Missouri Public Service Company had a reasonable time after receiving the notice referred to in paragraph Third to move said pole line from that part of the right of way referred to in Paragraph Second above;

“Fifth, that defendant, Missouri Public Service Company failed to move said pole line within a reasonable time after receiving the notice referred to in paragraph Third and Fourth above; and

“Sixth, that by reason of the failure referred to in paragraph Fifth above, plaintiff was damaged.”

The notation at the end of the instruction, as shown in the transcript, is as follows: “M.A.I. 22.01 Modified. Plaintiff prepared given J. D.”

The only instructions offered by defendant consisted of a converse of Instruction 2 and a burden of proof instruction.

Plaintiff’s first point on this appeal is that it was “entitled as a matter of law to damages capsed to it by reason of [defendant’s] wrongful obstruction of the highway, and the court therefore erred in instructing the jury that plaintiff’s right to recovery depended on [plaintiff] persuading the jury that [defendant]- had received notice to remove the poles and had not removed them within a reasonable time following receipt of notice.” Following this, in what appears to be “sub-points,” plaintiff makes the following contentions:

“A. Necessity for a formal hearing before the Highway Commission did not exist in this case.

“B. Waiver of formal hearing was made manifest by action of [defendant].

“C. Particular damage resulting from public nuisance is compensable.

“D. The trial court erred prejudicially in holding that the issues of notice and reasonable tibie were for the jury.”

Our interpretation of the above point is that plaintiff contends that under the evidence it was entitled to a directed verdict on the issue of liability, and that only the issue of the amount of damages should have been submitted to the jury.

We should first mention that we are unable to find from the record that plaintiff at any time requested the trial court to direct a verdict for it on the issue of liability, and the transcript affirmatively shows that the case was submitted to the jury at plaintiff's request on the issues incorporated into Instruction 2. Ordinarily a trial court is not to be convicted on appeal of error in failing to take action which was never requested. In Clay v. Owen, 338 Mo. 1061, 93 S.W.2d 914, a defendant requested and received instructions submitting his theory of the case to the jury without first questioning the sufficiency of the entire evidence to make a case for the jury. It was held that “his act in requesting the submission was voluntary,” and that on appeal he would “not be heard to say that the court erred in complying with his voluntary request.”

This principle should apply equally as well to a plaintiff who requests and receives instructions submitting his theory of the case on the issue of liability to the jury when he makes no request for a directed verdict on that issue. Also, by its point as above set out, plaintiff contends that Instruction 2 was erroneous, but plaintiff is not entitled to complain on appeal about an instruction given on its behalf at its request. Leathem v. Longenecker, Mo., 405 S.W.2d 873, 876; Brown v. Bryan, Mo., 419 S.W.2d 62.

Aside from the above reasons why plaintiff is not entitled to complain on appeal concerning Instruction 2, plaintiff was not entitled to a directed verdict on the issue of liability. Plaintiff’s theory was that defendant “failed to move said pole line within a reasonable time” after receiving the notice of the Commission to move the poles. It may be assumed that under some factual situations what is or is not a reasonable time may be declared as a matter of law. See for example, Ex Parte Trant, 278 Mo.App. 105, 175 S.W.2d 161. However, as stated in 75 C.J.S. at p. 635, “reasonable time” is a relative and flexible term which has no precise definition, and is “an indefinite time, which may vary with the circumstances of the case, and it will vary widely in different types of cases, since what would be a reasonable time in one case might be wholly inadequate in a different case or under different circumstances.” It is then stated that “what constitutes reasonable time in a particular case depends on the context and attendant circumstances, and it may depend on the nature and character of the thing to be done, considered with its purpose and the attendant facts and circumstances, such as the difficulties surrounding and attending its ac- _ complishment and the means and ability of the persons involved.” Whether defendant removed its poles in a reasonable time after notice, in view of the difficulties involved including the obtaining of necessary easements where the line was to be off the right of way, the weather, the need to maintain electric service to its customers during relocation, and all the attending circumstances, was clearly an issue for the jury, and could not be declared as a matter of law. We note that plaintiff’s argument in reply to defendant’s motion for a directed verdict at the close of all the evidence was that the issues were for the jury. For the most part the attending circumstances were established by oral testimony, and it has long been the general rule that “it is the function of the jury to pass upon all oral evidence,” Schaefer v. Accardi, Mo., 315 S.W.2d 230, and the “trial court is [seldom] justified in directing a verdict in favor of a party having the burden of proof where the case depends upon oral testimony.” Beezley v. Spiva, Mo., 313 S.W.2d 691. We find no merit to plaintiff’s first point.

Plaintiff’s next point is that the verdict for defendant “is utterly lacking in tangible support and therefore should be set aside as being the result of passion and prejudice on the part of the jury.”

We are of the opinion that plaintiff met its burden of proof of making prima facie proof of its theory of liability. However, a jury may find against a party having the burden of proof, when the issue is for the jury, even though his proof consists of uncontradicted and unimpeached evidence. Schaefer v. Accardi, supra; Cluck v. Abe, 328 Mo. 81, 40 S.W.2d 558. In this case, defendant was not required to offer any evidence to support a verdict in its favor. Superior Ice and Coal Co. v. Belger Cartage Service, Inc., Mo., 337 S.W.2d 897; Dixon v. Edelen, Mo., 300 S.W.2d 469; Wolff v. Richardson, Mo.App., 358 S.W.2d 112. Plaintiff’s contention that the verdict was the result of “passion and prejudice” is based on the erroneous assumption that the verdict against the party having the burden of proof must have “tangible support” in the evidence, and therefore is without merit.

Plaintiff’s third point is that the trial court erred “in denying the plaintiff the opportunity to show additional expense [on other projects] because of the delay in the Harrison County work caused by the failure to remove the poles.”

In this case the verdict was for the defendant, and ordinarily in that circumstance alleged errors as to the admission of evidence pertaining only to the issue of damages are not material. However, plaintiff asserts that as a condition for finding for plaintiff, Instruction 2 required the jury to believe that “plaintiff was damaged.” Also, Instruction 3, a converse instruction offered by defendant, provided that the “verdict must be for defendant * * * unless you believe * * * that by reason of the failure [of defendant to move said pole line within a reasonable time] plaintiff was damaged.” ^Plaintiff's theory is that although the jury may have believed all the propositions submitted in paragraphs First through Fifth of Instruction 2, it may not have believed that “plaintiff was damaged,” and for this reason it returned the verdict for defendant. We conclude that under the circumstances of this case, plaintiff is entitled to assert on this appeal that the exclusion of evidence on the issue of damages, if erroneous, could have affected the issue of liability. However, we reach the conclusion that the evidence was not erroneously excluded. We shall review the circumstances.

When Mr. Parsons was testifying for plaintiff, he was asked on direct examination whether plaintiff was working on projects other than the construction of Route DD, and he replied that it was and he referred to projects in Lewis and Holt Counties. When asked what occurred “in relation to the work that you had to do in Lewis County as far as your ability to perform work there,” defendant objected on the ground that damages to plaintiff on other projects would constitute special damages, and that plaintiff had not pleaded special damages but had pleaded general damages only. After an extended discussion between counsel and the court, the objection was sustained. Plaintiff then moved to amend its petition to allege special damages resulting at other projects, and this request was denied.

In plaintiff’s petition reference was made only to the contract for the construction of Route DD. It was pleaded that the failure of defendant to relocate its poles on that project resulted in a public nuisance and that plaintiff was damaged. There were no allegations that plaintiff was engaged in working on other projects, and that by reason of a delay in performing the construction work on Route DD plaintiff was caused to be delayed on other projects. It is therefore clear that plaintiff’s petition was limited to defendant’s alleged wrongful conduct in connection with plaintiff’s work in constructing Route DD, and that plaintiff alleged only general damages.

Civil Rule 55.21, V.A.M.R., provides that “When items of special damage are claimed, they shall be specifically stated.” See also, Section 509.200 RSMo 1959, V.A.M.S. General damages are those which the law would impute as the natural, necessary and logical consequence of defendant’s wrongful act. Special damages are the natural but not necessary result of the wrongful act. Johnson v. Flex-O-Lite Manufacturing Corporation, Mo., 314 S.W.2d 75, 84. It has been said that the determination of what are special damages has been the source of confusion. 27 Mo.L.Rev. p. 560. However, it is clear in the case before us that damages sustained by plaintiff by reason of its inability to perform work on other projects at other places resulting from defendant’s alleged wrongful acts in connection with the construction of Route DD, while perhaps a natural result, could not reasonably be considered to be a necessary and logical consequence of the wrongful acts of defendant alleged in the petition. Therefore, such items of damages are special damages within the meaning of Civil Rule 55.21, and unless they are specifically stated in the petition, plaintiff may not, over the objection of defendant, present evidence in support thereof. Smith v. Tracy, Mo., 372 S.W.2d 925, 939; Weller v. Hayes Truck Lines, 355 Mo. 695, 197 S.W.2d 657; W. C. Hardesty Co. v. Schaefer, Mo.App., 139 S.W.2d 1031; 22 Am.Jur.2d Damages §§ 270, 271.

In support of its contention that proof of “extra expense on the Lewis and Holt projects” did not constitute proof of “special damages,” plaintiff cites Weller v. Hayes Truck Lines, supra, and Orr v. Williams, Mo.App., 379 S.W.2d 181. Each of these cases was a suit for damages to a vehicle, and in each it was held that damages for loss of the use of that vehicle could be recovered, and in the Weller case it was held that in the circumstances loss of use of the vehicle constituted general damages. In the Orr case there was no discussion of whether in order to recover damages for loss of use of the vehicle it was necessary to plead them specifically, but the Weller case was cited. In those two cases, loss of the use of the vehicle damaged was the necessary and logical result of the damaging. The factual situations of those two cases are not comparable to the situation before us, and do not lend support to plaintiff’s position.

Plaintiff asserts in its brief that it should have been permitted to show damages resulting on other projects at other places because “loss of profit” is a proper element of damage, and cites Fuchs v. Curran Carbonizing and Engineering Co., Mo.App., 279 S.W.2d 211, and Anderson v. Abernathy, Mo., 339 S.W.2d 817. Neither of those cases discuss the question of whether it was necessary in the factual situations of those cases to state specifically as special damages an alleged loss of profit. However, it is the general rule that “loss of business profits must be specifically pleaded in tort actions.” 22 Am.Jur.2d Damages § 289. See also, W. C. Hardesty Co. v. Schaefer, supra.

We adhere to our view that damages resulting from circumstances occurring at other projects at other places allegedly resulting from the wrongful act of defendant in connection with construction of Route DD, if recoverable at all, had to be specifically stated in plaintiff’s petition. For these reasons, the trial court correctly sustained defendant’s objection to the offer of plaintiff to prove damages on other projects at other places.

Plaintiff next asserts that the trial court abused its discretion in refusing plaintiff permission to amend its petition during trial to state specifically special items of .damages.

Civil Rule 55.54, V.A.M.R., provides that “If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits.”

The record shows that in preparing for its defense to plaintiff’s petition defendant examined plaintiff’s books in an effort to meet the contention that plaintiff had been damaged. There is an implication that defendant encountered difficulty in separating the Route DD project from the other projects. But, it is not shown that defendant made any attempt to examine the books in reference to losses sustained at other proj ects which might have been attributable to defendant’s acts on Route DD. Defendant would have been entitled to such an examination to meet the evidence proposed by plaintiff. This was a trial before a jury, and a recess for that purpose would have not been appropriate. The trial court commented that the alleged losses at other projects “may have been proper elements to have been set forth” in the petition, but the court expressed concern that if it permitted the proposed amendment “then in effect Pandora’s box is opened.” Also, the trial court had attempted to work out an arrangement with counsel to have their pleadings complete in advance of the date of trial. This effort was, of course, subject to the right of the trial court to permit subsequent amendments as authorized and directed by Civil Rule 55.54, but it does indicate that the complexity of the issues and pleadings received the attention of the trial court and the parties prior to trial.

In Pender v. Foeste, Mo., 329 S.W.2d 656, the defendant’s answer charged one plaintiff with contributory negligence but did not so charge the other plaintiff. At the end of the plaintiffs’ evidence defendant sought to amend his answer by inserting an allegation of the other plaintiff’s contributory negligence, and the request was refused. This court held: “Courts should be liberal in permitting amendments to pleadings, * * * but whether a particular amendment ‘should be permitted is primarily within the sound judicial discretion of the trial judge, whose action will not be disturbed where * * * there is no showing that such discretion has been palpably and obviously abused.’ ” This is the correct test to be applied here. There were good and sound reasons for the trial court ruling as it did. It cannot be said on this appeal that the trial court abused its discretion in refusing the requested amendment in the middle of a jury trial when the normal pre-trial methods of discovery would not be available to defendant, and a continuance to permit defendant to prepare to meet the new issues would not have been practicable.

The remaining point of plaintiff pertaining to the jury verdict in favor of defendant in that “there was insufficient factual foundation for the testimony of defendant MPS’s engineering witnesses as to plaintiff’s cost, and this evidence was also irrelevant and prejudicial.”

This point is so general that it does not comply with Civil Rule 83.05(e), V.A.M.R. It apparently refers to the testimony of two registered professional engineers, who testified as expert witnesses and whose qualifications are not challenged. Their testimony covers 130 pages in the transcript, and its general purpose was to show that plaintiff’s actual cost of construction of Route DD was not as much as it claimed, and therefore, its damages were less than asserted. The point does not state why it is contended that the testimony was “irrelevant and prejudicial,” but in the argument it is asserted that the testimony was “immaterial” because whether or not “plaintiff made a profit has no bearing on MPS’s liability.” The evidence did pertain to the amount of damages, if any, to which plaintiff would have been entitled, so its admission was not without any materiality. Accepting as correct plaintiff’s contention that this evidence had “no bearing” on the issue of defendant’s liability, we need not review the matter further because in view of the defendant’s verdict on the issue of liability, we need not review alleged errors not affecting that issue.

The point also does not set forth why the testimony of these two witnesses did not have “factual foundation.” We speculate that reference is made to their opinion testimony. We find that the opinions expressed were based partially on personal knowledge and partially on records and reports of the Commission, pertaining to the construction of Route DD, which were business records and which had been admitted into evidence. In its reply brief plaintiff states that it does not complain about the admission of the Commission’s records, “but rather to the [witnesses] unfounded assumption as to what they show.” Plaintiff then says that the witnesses “knew nothing about the records, [and] should not have been allowed to speculate as to ambiguous items about which they knew nothing.” We do not know what plaintiff contends to have been an “unfounded assumption” and to be “ambiguous items.” If we should search the 130 pages of testimony of these witnesses in an effort to find something to support plaintiff’s contention we would in effect be acting as an advocate for plaintiff, an activity outside our proper function. For the reason that plaintiff has not demonstrated how the admission of this evidence could have prejudicially affected the issue of liability, we find no merit to this point.

The remaining point of plaintiff is that the trial court erred in “sustaining the motion for directed verdict on the part of [the Commission] for the reason that it was the duty of the Commission to have the construction site ready so that plaintiff could proceed.”

In argument plaintiff asserts that the Commission had the authority pursuant to Section 227.240 to compel the defendant to relocate its lines, and the duty to have the site ready for the contractor was “a normal duty of one who contracts for construction work on property he controls.” Plaintiff also cites Spitcaufsky v. State Highway Commission of Missouri, 349 Mo. 117, 159 S.W.2d 647, and asserts that the Commission is liable for delays in the work caused by it or which it could have prevented by proper action under the law.

In its petition, plaintiff alleged that the Commission had the power and authority to control the location of defendant’s poles in the right of way; that the Commission “is responsible for the removal of obstructions in the right of way, and particularly for the removal of poles, transmission lines and equipment located there by the public utilities using the rights of way;” and that “a long time before” plaintiff was to proceed with the work on Route DD the Commission “duly and properly notified” defendant to remove its transmission line and poles, and “it thereupon became the duty of the defendant * * * to comply with the notification to remove said lines, poles and equipment.” Defendant’s answer was to the effect that it owed no duty to plaintiff to move its poles because the Commission had not given it the notice required by Section 227.240, and had not otherwise complied with that statute. Plaintiff’s reply was that defendant “had adequate notice as contemplated by Section 227.24Q, RSMo 1959 [V.A.M.S.];” that it had “waived any further requirements of notice and hearing” otherwise contemplated by Section 227.240; and that defendant had “agreed * * * to remove [the poles] and clear the right of way, so that construction could begin upon Route SDD.” In the answer of the Commission it was alleged that it notified defendant of its intention to construct Route DD; that it had given defendant a set of plans and profile sheets, and had notified it that the right of way was staked and that it could proceed to relocate its lines; and that defendant had represented to the Commission its willingness and intention to move its transmission line; and that the Commission had acted in reliance upon said representations. The Commission further alleged that the contract between it and plaintiff provided, by reference to the “Proposal” and “Standard Specifications” which-were made a part of the contract “as fully as if set out therein,” that plaintiff was to examine the site of the proposed work and “shall consult with the various utility owners regarding the locations and adjustments required, and determine for itself the locations of such utilities on the right of way which may affect their operations, whether or not shown on the plans,” and that plaintiff should coordinate its operations with the work of the public utilities who are to remove and construct new fixtures, and that the Commission “will not be responsible for any delay or inconvenience to the plaintiff resulting from plaintiff’s required cooperation and the coordination of its work with the owners of public utility facilities, nor for any inconvenience, delay or added expense to the plaintiff in working around utility facilities located on the right of way, or for the delay or added expense to the plaintiff resulting from the failure of the utility owners to remove or relocate utility facilities so that plaintiff’s work may proceed on schedule.” Proof of these contract provisions was made at trial, and plaintiff does not now challenge them in any way.

Plaintiff’s position in its pleadings and in its submission of its case was that the Commission did all that was needed to be done by it to impose the duty on defendant to move its poles. It specifically pleaded that the Commission had “duly and properly notified defendant.” See Jackson County Public Water Supply District No. 1 v. State Highway Commission of Missouri, Mo., 365 S.W.2d 553. Whether it was wise for plaintiff to have done so is not before us, but plaintiff expressly contracted with the Commission that the Commission should “not be responsible” for “the delay or added expense” to plaintiff resulting from defendant’s failure to timely relocate its poles. We see no reason, and plaintiff advances no reason, why this would not be binding on plaintiff after the Commission had done all that was necessary to impose the duty on defendant to relocate its poles, and plaintiff’s pleaded position was that the Commission had taken such action.

In the absence of any showing that the Commission wrongfully interfered in the performance of plaintiff’s work, see Spitcaufsky v. State Highway Commission of Missouri, supra, and there is no such showing or even such a contention in this case, the record establishes that plaintiff contends-that the Commission gave due and proper notice to defendant to move its poles, and that plaintiff by contract agreed that the Commission should not be liable to plaintiff for any delay or additional expense resulting from the failure of plaintiff to relocate its poles. Plaintiff has not demonstrated error on the part of the trial court in directing a verdict in favor of the Commission.

The judgment is affirmed.

BARRETT and PRITCHARD, CG, concur.

PER CURIAM:

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

FINCH, P. J., EAGER, J., and RANDALL, Special Judge, concur.

DONNELLY, J., not sitting.


source: Caselaw Access Project

author: SEILER, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Robert W. YOUNG, Appellant.
    No. 52907.
    Supreme Court of Missouri, Division No. 1.
    March 11, 1968.

      Norman H. Anderson, Atty. Gen., Jefferson City, Edward J. Wynne, Sp. Asst. Atty. Gen., St. Louis, for respondent.
    Dean S. Johnston, Joplin, for appellant.
   SEILER, Judge.

This case involves a question of search and seizure. From a conviction by a jury upon an information charging prior felonies and a current offense of unlawful possession of burglar tools (§ 560.115, RSMo 1959, V.A.M.S.), with a sentence of four years by the court, defendant appeals. Specifically, the information charged possession of “a coal chisel, an electric drill, one extension cord, one flashlight, one pry bar, two pair of gloves, several drill bits, one ball peon hammer and one large hammer, several crescent wrenches and several screw drivers.” Defendant’s primary contention is that the court erred in overruling his motion to suppress certain evidence found in a search of his car by the police which was the basis of his conviction. We agree with his position and reverse the judgment.

The facts are substantially as follows: On January 2, 1967, about 12:30 a.m. defendant and his passenger, Eugene Janzer, both transients, were northbound on Main Street in Joplin, in defendant’s automobile, a 1950 Cadillac. Police Officer Norman Boyd, who was southbound on Main at Seventh Street, noticed that defendant’s car did not have a license plate in the usual place on the rear bumper. Boyd followed defendant’s car and stopped it with his red light near Fifth and Main, about two blocks north of where he first observed it. Defendant was driving at a reasonable speed and was not violating any Joplin traffic ordinances. Defendant and his passenger were unknown to Officer Boyd. Boyd informed defendant why he was stopping him,and asked for his driver’s license and also for his papers for the vehicle. Defendant showed Boyd his Utah driver’s license and the sales papers on the car, both of which were in order. According to these papers the car was purchased in Salt Lake City, December 13, 1966. The car had no license plate but there was a Utah temporary motor vehicle registration permit, approximately 11 x 5 inches in size, mounted in the rear window of the car, which Officer Boyd had not noticed until defendant called it to his attention. This permit was still in force and it was made out for defendant’s vehicle. When defendant got out of the car to hand Officer Boyd his papers, the interior light went on and Boyd saw an electric drill and two small screwdrivers lying on the rear floor.

According to Officer Boyd, Young was neat in appearance, had not been drinking, was polite and had not committed any felony that Boyd knew of. Boyd was not in pursuit of any felon at the time and had no report of any felony which had been committed that evening within his beat.

About the time Boyd was checking defendant’s papers, another Joplin policeman, Officer Lawless, southbound on Main Street in a police car, with a police dog, happened by and was flagged down by Officer Boyd. Boyd had Lawless look over defendant’s papers, “wondering whether they were * * in order”. Lawless could not find any irregularities. A third Joplin policeman, Officer Gunn, was also present. He stood on the sidewalk, keeping defendant’s passenger under observation. Boyd asked Young what type of work he did and where, but was unable to recall defendant’s answer or explanation for the tools, except defendant said they were his. Defendant’s testimony on the hearing on the motion to suppress was that he was an electrician, a trade which he had learned in rehabilitative training while an inmate of the Utah State Penitentiary. He produced a card from “the Board” showing 1056 hours of “industrial electricity”. Boyd said defendant told him he was going to Kansas City. Defendant testified they were “just passing through” Joplin on U.S. 66 en route to Kansas City, but “had to go through Pittsburg, Kansas”. Officer Boyd asked defendant if he would open the trunk. Boyd said that defendant said, “It is silly”, that “He didn’t do it right at first, just made an expression as if he didn’t exactly want to, but which he did on his own free will”, and then took the key from the ignition switch and opened the trunk. Defendant said he agreed to open the trunk, but not until he had told Officer Boyd he did not want to open .it to begin with, that he “didn’t like people looking through my private stuff”, but the police said “We are going to be looking at them now whether you like it or not”, and rather than have the car “mistreated”, defendant opened the trunk. While Officer Boyd was going through the trunk, Officer Lawless was searching the car. In the trunk there was a tarp with a spare tire, a tire tool and a bar, pointed on one end and U-shaped and flat on the other. There was also a small trunk with clothing, apparently belonging to the passenger, several cans of oil, and a battery box, containing the following: a twenty inch screwdriver, four pairs of pliers, two eight inch crescent wrenches, four open end wrenches, a chuck for an electric drill, a piece of wire, a lock washer, and a nut. Officer Lawless searched the glove compartment and underneath the front seat. Under the front seat he found a sledge hammer with a short handle, a large screwdriver and a ball peen hammer. In the glove compartment he found a green electric cord, three bits for an electric drill, two screwdrivers, three pairs of pliers and one coal chisel. Later in the day at the police station, another officer also found under the front seat a chrome flashlight, still another screwdriver, and a pair of gloves. The contents of the box, the glove compartment and the various tools were marked as exhibits and shown the jury.

Officer Boyd testified that when he first talked to defendant he did not place him under arrest. He said “ * * * the minute I observed the tools in the trunk of the car I placed him under arrest for possession, in the possession, the possession of burglary tools. That is when Officer Lawless went around to the passenger side and looked in the front of the vehicle.” Prior to that time Officer Boyd said he had not arrested Young for any charge. Boyd asked defendant whether he had any previous criminal record but not until after he had placed defendant under arrest. The police also arrested defendant’s passenger on a charge of possession of burglar tools, but later released him.

Officer Lawless heard Officer Boyd place defendant under arrest. This was after the trunk had been opened and when Boyd and defendant were standing about six feet to the rear of the car. Lawless did not know of any previous record on Young’s part at this time, either.

At the trial the state put in evidence defendant’s first degree burglary conviction in Arizona in 1958, from which he was paroled in 1960, a conviction for second degree burglary in Utah in 1960, a conviction for assault in Utah in 1961, and a conviction for escape from the Utah State Penitentiary in 1962. He was released from the Utah penitentiary December 12, 1966.

In ruling on the motion to suppress the trial court stated “ * * * when he [the officer] asked for identification, the driver license, he was enabled to see tools that are commonly used .in burglary cases, and that on the opening of the trunk he then saw other tools which were suitable to use as burglary tools, and at that time he arrested the defendant, and after that the car was searched. I think the motion to suppress will be overruled.”

Officer Boyd was justified in halting defendant’s vehicle, because it appeared the car was being operated without a license, which would be a misdemeanor under § 301.130(5) and § 301.440, RSMo 1959, V.A. M.S. Whether this halting was a technical “arrest” or not, once halted, however, the question about the license was resolved in defendant’s favor. Defendant produced a valid driver’s license and valid ownership papers on the car and when Officer Boyd told defendant why he was being stopped, defendant pointed out the temporary permit in the rear window of the car, which Officer Boyd had failed to observe. The permit appeared to be valid and in order. At this point, therefore, there was no more investigation needed so far as the suspected offense for which defendant was stopped was concerned. We need not attempt a general rule as to just how much searching of a vehicle can lawfully be done when an automobile is stopped for a traffic or license violation, as it is clear no further searching was justified on the basis of the supposed license violation. The justification for any further detaining of the defendant on this ground vanished when it became apparent that the car was not being operated without a license', as Officer Boyd had first suspected. And there is no claim made by the state that the officers’ subsequent actions were in any way connected with any further investigation of the license matter.

Although Officer Boyd saw the electric drill and two screwdrivers on the floor of the car when the door was opened, the situation at the moment was that he did not know of any recent burglary, he did not know defendant or his companion, he knew nothing of any previous criminal record of defendant, defendant had not been drinking, his manner was “real nice” and the vehicle when halted was proceeding on a route consistent with the avowed destination of defendant and companion. The electric drill seen by Officer Boyd was exhibited to this Court during the oral argument. It is the ordinary type, hand size, portable electric drill which is available in any hardware store. The two screwdrivers are not before us, but apparently they are ordinary screwdrivers. We are unwilling to say that the mere presence of these particular tools in the car, under the circumstances then before Officer Boyd, constituted the commission of a felony in his presence by defendant, or provided a reasonable basis for suspicion that defendant was guilty of such offense. While such tools can be and are, according to the evidence, used by burglars, to be criminal the tools have to be breaking tools and the possession of such tools would have to be accompanied by a burglarious intent, State v. Hefflin, 338 Mo. 236, 89 S.W.2d 938, 943, 945, 103 A.L.R. 1301. The evidence fails to- show any outward indication of such intent at the time Officer Boyd observed these tools on the floor of the car. As seen from the facts stated earlier, any circumstances known to Officer Boyd from which he could reasonably infer such an intent on the part of defendant and his companion did not exist.

It is significant that Officer Boyd made no arrest at this point (an arrest at this point would have been unlawful, State v. Cuezze (Mo.Sup.) 249 S.W.2d 373, 375) but instead embarked on a general exploratory search. He had no knowledge there was anything offensive to the law to be found and defendant had done nothing to cause Boyd to believe he was concealing anything. Boyd wanted to look in the trunk and asked defendant to open it. Although defendant got the keys from the ignition and personally opened the trunk it is apparent from what the officers said the defendant said, aside from what defendant’s own unrebutted testimony was on the point, that this did not constitute free and voluntary consent on the part of the defendant under the circumstances. When this happened there were three Joplin policemen, their automobiles, and police dog present representing the authority and compulsion of the law. Under the circumstances defendant was doing no more than submitting to the will of the police in what must have appeared to him to have been a firm determination on the part of the authorities to look in the trunk. It was not until after Boyd saw what was in the trunk that he placed defendant under arrest for illegal possession of burglar tools. The fact that evidence was discovered in the search which would have justified the arrest does not make the search lawful, State v. McBride, 327 Mo. 184, 37 S.W.2d 423, 425; State v. Morice (Mo.Sup.) 79 S.W.2d 741, 742. Nor does the fact the defendant was in or about his automobile dispense with the need for probable cause, Henry v. United States, 361 U.S. 98, 104, 80 S.Ct. 168, 4 L.Ed.2d 134.

Officer Boyd did not have probable cause to search the trunk or the automobile. This was an unreasonable search and seizure under the facts before us, and therefore a violation of the constitutional provisions, which make no distinction between the guilty and the innocent. Defendant’s motion to suppress should have been sustained. The conviction must be set aside because of the improperly obtained evidence, Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081.

Without admission of the fruits of the unlawful search of the car and trunk, should the case be remanded for a new trial on what is left, if the state is so advised? Apparently the state put in all the evidence it had. Evidently defendant made no statements beyond what appears above. Previous convictions are admissible in a case of this sort not * * * to prove the ultimate fact of his guilt, but only as throwing light on his intent in carrying the tools * * * ”, State v. Hefflin, supra, 89 S.W.2d l. c. 946. Here the previous convictions constitute all the evidence there is on intent. The last two convictions had nothing to do with burglary and the first two were not very close in time. The defendant was not in a disreputable neighborhood. There was no proof that defendant’s associate, Janzer, was a criminal. Defendant made no effort to resist or flee and the electric drill and the two screwdrivers which Officer Boyd saw were not in a secret place. We have found no case which upholds conviction of possession of burglar tools on mere possession of tools of such equivocal nature as an electric drill (if it, without a bit, is a breaking tool) and two screwdrivers, without more on which to base possession with a burglarious intent than appears here. There is not enough here after the illegally obtained evidence is removed, to allow a jury to believe beyond a reasonable doubt that defendant intended to commit a burglary, People v. Taylor, 410 Ill. 469, 102 N.E.2d 529. Furthermore, if a conviction can stand merely on a showing of possession of tools which can be used for legitimate purposes as well as for burglary, together with proof of a prior conviction, no released convict could ever safely be in possession of working tools no matter how honest his actual intentions might be. Numerous honest trades would thereby be closed to a convict who was attempting to support himself lawfully, which we do not believe the legislature intended to be the result of § 560.115, supra.

The judgment is reversed and defendant ordered discharged.

HENLEY, P. Jconcurs m result.

STORCKMAN, J., dissents.

      . The record is not clear on whether Officer Boyd saw any tools other than the electric drill and the two screwdrivers when defendant got out of the car. In passing on the motion to suppress the trial court made no finding on this point. Defendant carried forward in the trial his objections to the admission in evidence of the tools and from examination of the entire record we conclude that what Officer Boyd saw was the electric drill and the two screwdrivers. This is also the position taken by both the defendant and the state in their briefs. At the hearing on the motion to suppress, Boyd first said, “I noticed on the floor hoard some tools, an electric drill, and a couple of screw drivers and a hammer”, that “They were lying with the drill on the rear floor”. Later he said, “ * * * and I believe a little short hammer with a heavy metal bill on it.” Officer Lawless at the hearing testified the tools he saw on the back seat floor were the drill and the screwdriver. At the trial Officer Boyd testified, “I observed an electric drill and two small screwdrivers” and identified these as exhibits 5, 6, and 7. He made no mention of also seeing a hammer and said the drill and screwdrivers were all he could recall seeing. Officer Lawless testified he searched under the front seat and there found a ball peen hammer, a sledge hammer with a short handle, and a large screwdriver. He identified the two hammers as exhibits 16 and 17 and said they had been tagged by Officer Boyd. The state put in evidence all the tools found by the officers. The only hammers are exhibits 16 and 17 and the information refers only to two hammers. We conclude, therefore, on the whole record, that the hammer with the “heavy metal bill on it” (which is a type of peen hammer, according to the illustrations in Webster’s Third New International Dictionary) mentioned by Officer Boyd at the hearing is actually the hammer found under the seat by Officer Lawless and that all that was in Boyd’s view when the door was opened were the electric drill and the two screwdrivers.

      . It is declared in State v. Williams, 328 Mo. 627, 14 S.W.2d 434, 435, that an officer has no right to search for evidence in a manner prohibited by constitutional provisions even though he knows the evidence is there, that “his search is illegal because its very purpose is to discover evidence”.

      . The trial court made no finding as to whether there was consent on the part of defendant to open the trunk. The court evidently proceeded on the theory the officer was justified in making the search regardless of consent.

      . See State v. Owens (banc) 302 Mo. 348, 259 S.W. 100, 102, 32 A.L.R. 383, where the court said: “ * * ⅜ If an officer appears at a person’s home, and in his official character demands the privilege of searching the premises, the owner of the premises who yields peaceably and silently to the official demand is as much under constraint as if he had forcibly resisted official interference”; also State v. Redding (Mo.Sup.) 357 S.W.2d 103, 108. See also United States v. Novero (D.C.E.D.Mo.) 58 F.Supp. 275, where alcohol tax unit agent asked defendant to unlock the smokehouse and garage and he did so. The court held that the search of the smokehouse and garage was without probable cause and defendant did not waive his constitutional rights by peacefully complying with the request of the agent to unlock the building. See also Scurlock, Searches and Seizures in Missouri, 29 U. of K.C.L.Rev. 242, 295: “ * * * There is a wide difference between consent and submission. Mere acquiescence in the apparent authority of an officer will not be considered consent. The problem is to determine whether the defendant really consented or whether he merely acquiesced * * * ”, and 79 C.J.S. Searches and Seizures § 62, p. 820, “In order to constitute a waiver it must be clearly shown that consent given to an otherwise illegal search was voluntary * * * and not given merely to avoid re-sistence. * * * ”

      . It was discovered when defendant and his companion were searched at the police station that defendant had only two dollars and his companion had none. Without considering whether this fact would properly be admissible in evidence under the circumstances, we do not see where it adds anything to the state’s case on intent. We cannot say that lack of funds shows a general intent to commit a burglary. It might show motive if the necessary intent existed, but intent and motive are not the same. * * * Motive is the moving cause which induces action; it has to do wholly with desire. Intent is the purpose of design with which an act is done, and involves the will * * * ’ ” State v. Hughes, 344 Mo. 116, 125 S.W.2d 66, 70; 22 C.J.S. Criminal Law Sec. 31(1), p. 107.


author: STORCKMAN, Judge.

text:
    STATE of Missouri, Respondent, v. Leroy FRANKUM, Appellant.
    No. 52436.
    Supreme Court of Missouri, Division No. 1.
    March 11, 1968.

      Norman H. Anderson, Atty. Gen., B. J. Jones, Asst. Atty. Gen., Jefferson City, for respondent.
    Robert G. Duncan, Pierce, Duncan, Beitl-ing & Shute, Kansas City, for appellant.
   STORCKMAN, Judge.

On September 17, 1964, the defendant entered a plea of guilty in the Circuit Court of Scott County and a judgment was rendered convicting him of statutory rape. He was sentenced to eight years in the custody of the department of corrections and has since then been confined. On October 27, 1965, he filed a motion under S.Ct. Rule 27.26, V.A.M.R. to vacate and set aside the judgment and sentence and counsel was appointed to represent him as an indigent person. A hearing was held in circuit court, his motion was overruled, and he was permitted to appeal as a poor person. Counsel was also appointed to represent the defendant on appeal, but at his insistance appointed counsel was relieved and he is now represented by counsel of his own choice.

The first of the two points presented on appeal states that the defendant “was arrested for, waived preliminary hearing on a charge of, and believed he was pleading guilty to, a charge of incest, and therefore the judgment of conviction for rape should have been set aside and vacated.” His other contention is that the “information was fatally defective, vague, indefinite, and attempted to allege numerous offenses, but failed to allege the essential elements of any offense.”

On June 22, 1964, a complaint for a state warrant was subscribed and sworn to by Shearry Frankum before the clerk of the magistrate court of Scott County, Missouri, in which the prosecutrix stated that “Leroy Frankum did * * * wilfully and unlawfully and feloniously, molest me by placing his hands on my private parts and did commit fornication with me in the months of July and August of 1961 and August of 1962 and did attempt to fornicate with me from that time until the date of this complaint, by making lewd and improper suggestions to me, by threatening me with bodily injury if I did not submit to said improper advances, in a manner that was unlawful in that my present age as of December 9th, 1963 is 14 years of age, * * *.” Leroy Frankum was the father of Shearry but the complaint did not so state nor did it allege any degree of consanguinity between the parties. Nevertheless, the warrant issued by the clerk of the magistrate court asserted that a complaint had been filed in magistrate court charging that Leroy Frankum had “committed the crime of Incest.”

The defendant was taken into custody and on June 23, 1964, he with his attorney Kenneth L. Dement appeared before the magistrate. The charges were read and on application of the defendant the preliminary hearing was continued to July 7, 1964, and the amount of his bond was set. On June 30, 1964, Mr. Dement withdrew as attorney for the defendant. On July 7, 1964, the defendant appeared in person and again heard the charges read. The magistrate court advised the defendant of his rights to trial and legal counsel. The cause was then continued to July 14, 1964, to give the defendant further time to procure legal advice. On July 14 the defendant appeared in person, again heard the charges read, and waived his preliminary hearing. His bond was continued for his appearance in circuit court.

The information filed in the circuit court was practically identical with the complaint set out above. The prosecuting attorney charged that “the said defendant (s) Leroy Frankum on, or about, the —day of July, Aug., 1961 Aug. 1962 A.D., 19_, and within three (3) years next before the filing of this information, at the said County of Scott, in the State of Missouri, did then and there, willfully, unlawfully and feloni-ously molest Shearry Frankum by placing his hands on her private parts and did commit fornication with her in the months of July and August of 1961 and August of 1962 and did attempt to fornicate with her from that time until the date of this complaint, by making lewd and improwper suggestions to her by threatening her with bodily injury if she did not submit to said improper advances, in a manner that was unlawful in that her present age as of December 9, 1963, is 14 years of age, and as a result such actions were * * * contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State.” In a blank space on the face of the information, two statutes were listed, § 563.160 relating to molesting a minor and § 559.260 dealing with statutory rape.

On July 23, 1964, the defendant advised the circuit court that he was without funds to employ a lawyer and Dwight Crader was appointed to represent him. On August 13, 1964, the defendant was formally arraigned and entered a plea of not guilty. At the setting of the case for trial on September 17, 1964, the defendant appeared with his counsel, withdrew his not guilty plea and entered a plea of guilty. The judgment rendered states that the defendant voluntarily entered a plea of guilty to the charge of statutory rape.

On October 27, 1965, the defendant filed his motion under S.Ct. Rule 27.26 to set aside the judgment and sentence. Mr. James S. Green was appointed as legal counsel for the defendant and a hearing was held at which the defendant was present. He testified that he thought he was pleading guilty to a charge of incest, that he did not know what the charge of incest included, that is what he was informed and is the reason he pleaded guilty, that after he got to prison he learned he was sentenced on a charge of statutory rape. On cross-examination the defendant testified he had his own counsel at the time bond was set, that the magistrate read the charges made against him, that he had appointed counsel in the circuit court and that the circuit judge also read the charges to him. Mr. Dement testified that he counseled with Leroy Frankum in June 1964, but that he could not state specifically that he did or did not discuss the charge or the merits of the charge, that the defendant failed to pay his fee and he withdrew from the case. The hearing was concluded with extensive argument by counsel. Thereafter, the trial court made findings and overruled the motion. From this ruling the defendant appealed.

The defendant’s first contention is that the judgment of conviction for statutory rape should be set aside because he believed he was pleading guilty to a charge of incest. On the factual side he asserts he was arrested for and waived a preliminary hearing on a charge of incest. As previously noted the warrant designated the alleged offense as incest, but the clerk of the magistrate court was not justified in drawing that conclusion from anything in or on the complaint because it did not disclose the existence of the consanguinity between Leroy and Shearry Frankum which is necessary to constitute the crime of incest under § 563.220. Any information of that sort had to come from the clerk’s independent knowledge and not from the complaint. Defects in the complaint filed in the magistrate court and the warrant issued go only to the validity of the arrest and, if the accused proceeds to trial or pleads guilty without objection, such defects are waived. State v. Gunther, Mo., 415 S.W.2d 733, 736 [2, 3]; State v. Ninemires, Mo., 306 S.W.2d 527, 529 [3,4]; State v. Herron, Mo., 376 S.W.2d 192, 193 [2]; State v. Testerman, Mo., 408 S.W.2d 90, 92 [3, 4]; State v. Keeble, Mo., 399 S.W.2d 118, 120 [8, 9]; State v. Turner, Mo., 353 S.W.2d 602, 604 [5]. Since timely objection was not made, the fact that the crime charged was improperly designated in the magistrate court does not afford grounds for setting aside the judgment and sentence rendered on the information filed in the circuit court.

Other than this mistaken designation of the offense in the magistrate court, there is no support for the defendant’s assertion at the hearing on the motion that he thought he was pleading guilty to incest. After the warrant was served on him, he consulted with counsel in the magistrate court. After the information was filed, counsel was appointed for the defendant in circuit court and it was two months before the case was set for trial. This ground was not included in the motion to set aside which was filed more than a year after he had gone to prison. It first appeared as the defendant’s conclusional assertion while he was testifying. He does not claim that the circuit court, the prosecutor, or his counsel misled him in any manner or particular. In the circumstances related, the defendant’s bare assertion that he “believed he was pleading guilty to a charge of incest” is not persuasive that the trial court erred in overruling his motion to vacate.

In addition to court rules and statutory and constitutional provisions, the defendant cites three Missouri decisions in support of his first contention. State v. Bowles, Mo., 360 S.W.2d 706, is cited for the proposition that an accused cannot be brought into court to answer a charge of a commission of one offense and be convicted of an entirely different offense. The state’s evidence in the Bowles case tended to show several acts of molestation but defendant’s defense of alibi did not cover all of the dates mentioned. A verdict-directing instruction authorized a verdict of guilty if the jury found the defendant had committed an act of molestation at any time within three years next before the charge was filed. On appeal this instruction was held erroneous in that the state should have been required to elect on which charge it would go to the jury. State v. Hovis, 353 Mo. 602, 183 S.W.2d 147, and State v. Bursby, Mo., 395 S.W.2d 155, are cited for the proposition that a plea of guilty like a confession out of court should not be received unless it is freely and voluntarily made, and if a defendant should be misled or induced to plead guilty by fraud or mistake, by misapprehension, fear, prosecution, or the holding out of hopes which prove to be false or ill-founded, he should be permitted to withdraw his plea. There is no showing that any such prohibited activities tainted the proceedings in the circuit court or influenced the plea of guilty.

The defendant mistakenly asserts that the record entry of the judgment is the only place that the offense charged is designated “statutory rape”. In a blank space on the face of the information filed in circuit court these two sections of the statutes are referred to: Section 563.160 which defines the offense of molesting a minor with immoral intent and § 559.260 defining rape “either by carnally and unlawfully knowing any female child under the age of sixteen years, or by forcibly ravishing any woman of the age of sixteen years or upward”. Section 563.220 defining incest was not mentioned and the information was not sufficient to charge that crime because there was no allegation of any blood relationship of the parties. Nothing was said or done in the circuit court that could reasonably be said to have misled the defendant into believing that he was charged with the offense of incest.

The defendant also cites S.Ct. Rule 25.04 which provides that a trial court shall not accept a plea of guilty without first determining that the plea is made voluntarily with understanding of the nature of the charge. He further cites S.Ct. Rule 27.25 which provides that a motion to withdraw a plea of guilty may be made only before sentence is imposed or when imposition of sentence is suspended. The rule further provides that “to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea.” The evidence in this case does not tend to show that a manifest injustice was accomplished or that the rules referred to have been violated in any other manner. The contention that the defendant believed he was pleading guilty to a charge of incest is not substantiated by the record and is denied. Mackey v. Kaiser, Mo., 187 S.W.2d 198, 199-200 [2].

The defendant’s next and final contention is that “the information was fatally defective, vague, indefinite, and attempted to allege numerous offenses, but failed to allege the essential elements of any offense.” The judgment in question is a conviction of statutory rape, the definition and penalty of which is set out in § 559.260, RSMo 1959, V.A.M.S. Insofar as here pertinent the statute reads as follows: “Every person who shall be convicted of rape, * * * by carnally and unlawfully knowing any female child under the age of sixteen years * * * shall suffer death, or be punished by imprisonment in the penitentiary for not less than two years, in the discretion of the jury.” The language of the information which relates directly to the offense of statutory rape alleges that the defendant Leroy Frankum on dates specified “did then and there, willfully, unlawfully and feloniously * * * commit fornication with her [Shearry Frankum] in the months of July and August of 1961 and August of 1962 * * * in a manner that was unlawful in that her present age as of December 9, 1963, is 14 years of age”. While the information does not allege the victim to be a female, the fact that the first name is that of a girl and the information in referring to the victim six other times uses the pronoun “her” is sufficient to establish that the victim of the assault was a female. State v. Cook, Mo., 331 S.W.2d 587, 588 [2], The age of the female is stated in the information to be fourteen years. These allegations are sufficient to satisfy the statutory requirement that the victim is a “female child under the age of sixteen years”.

The act of fornication is commented on and, defined in State v. Tartenaar, Mo., 371 S.W.2d 192, 194 [3], as follows: “We have no statutory definition of the act of fornication. Therefore, when used the term is to be given its meaning under the common law, Section 1.010, which is the ‘illicit sexual intercourse between a man, whether married or single, and an unmarried woman.’ 37 C.J.S. Fornication § 1.” The term, carnal knowledge, as used in § 559.260 is defined and explained in State v. Conrad, 322 Mo. 246, 14 S.W.2d 608, 609 [1], as follows: “Carnal knowledge signifies sexual intercourse and unlawfully means in violation of law. Consequently, the statute, by saying ‘by carnally and unlawfully knowing any female child under the age of sixteen years,’ means having sexual intercourse with any female child under that age in violation of law.” Thus, fornication and unlawful carnal knowledge both have a meaning of illicit sexual intercourse. The result is that the statutory term of carnally and unlawfully knowing is satisfied by the use of the allegation that the defendant wil-fully, unlawfully and feloniously committed fornication with Shearry Frankum. Although the incest statute, § 563.220 also uses the term fornication, the information contains no allegation that the parties named are within the prohibited degrees of consanguinity. The information contains the essential elements of a charge of statutory rape. Mackey v. Kaiser, Mo., 187 S.W.2d 198, 199 [1]. It is not sufficient as a charge of incest.

The information contains some additional language commonly used in charging the crime of molesting a minor in violation of § 563.160, such as placing his hands on the minor’s private parts, making lewd and improper suggestions, and further attempting to fornicate with her. Even if we assume that these additional allegations are sufficient to charge the offense of molesting a minor with immoral intent, the mere joinder of the two offenses would not render the information fatally defective in the circumstances. In State v. Small, Mo., 386 S.W.2d 379, 382, it is stated that “the rape of a child is also a molestation of such child.” It is obvious that more than one offense may arise out of the same act.

The constitutional provision that the accused in a criminal prosecution has the right to demand the nature and cause of the accusation means that the indictment or information must be sufficiently definite to enable him to prepare his defense and to constitute a bar to further prosecution for the same offense. Art. 1, § 18(a), Constitution of Missouri 1945, V.A.M.S.; State v. Tandy, Mo., 401 S.W.2d 409, 412 [2]. Where an indictment or information alleges the essential facts constituting the offense charged but fails to inform the defendant of the particulars of the offense sufficiently to prepare his defense, the court may direct or permit the filing of a bill of particulars under S.Ct. Rule 24.03. A failure of the indictment or information to give all desired details may be waived by the defendant’s failure to request a bill of particulars. State v. Kesterson, Mo., 403 S.W.2d 606, 611 [5].

S.Ct. Rule 24.04 designates certain offenses which may properly be joined in the same indictment or information and provides that any indictment or information may contain counts for the different degrees of the same offense or for any one of such degrees. See also § 560.110. However, the joinder of distinct felonies does not render the indictment or information in which they are joined bad as a matter of law. State v. Terry, Mo., 325 S.W.2d 1, 4 [1]; State v. Gholson, Mo., 292 S.W. 27, 28 [2-5]. See also State v. Harris, 283 Mo. 99, 222 S.W. 420, 421-422 [1]. The cases also hold that where two or more felonies are charged in the same indictment or information, the court should require .the state to elect at the close of the evidence on which count it will go to the jury. As a general rule the objection that distinct felonies have been improperly joined in the same indictment or information must be raised by the defendant at the trial stage of the prosecution and when this is not done the right to object is waived. State v. Terry, Mo., 325 S.W.2d 1, 4 [4, 5].

The defendant’s contention that the information failed to allege the essential elements of any offense is denied. As we have demonstrated, the information sufficiently charged the crime of statutory rape. That is the only crime of which the defendant was convicted. In this circumstance we need not determine if any other crime was alleged except as such determination would bear on the additional contention that the information was fatally defective in that it was vague, indefinite and attempted to allege numerous offenses. The central factual allegation is that the defendant had unlawful intercourse with a female child under sixteen years of age. The other factual allegations were unnecessary but they are not at variance with the means and manner in which the unlawful act was accomplished. S.Ct. Rule 24.01 admonishes the pleader for the state that the indictment or information “shall be a plain, concise and definite written statement of the essential facts constituting the offense charged.” If sufficient particulars are not alleged for the defendant to prepare his defense, he may get them under Rule 24.03 by a bill of particulars. The information in this case is not a model by any means. It is an example of how to create needless problems. On the other hand, the excess verbiage does not detract sufficiently from the basic charge of statutory rape so as to make the information vulnerable to the defendant’s charge that it is fatally defective. The contention is denied.

We have considered all of the questions presented by the defendant on appeal and find them to be without merit. Accordingly, the judgment is affirmed.

All of the Judges concur.