author: NORWIN D. HOUSER, Special Judge.

text:
    Anthony D. KEEVEN and Martha Ann Keeven, Respondents, v. ST. CHARLES COUNTY UTILITIES COMPANY, INC., Appellant.
    No. 36933.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Sept. 28, 1976.

      Claude C. Knight, Hannegan, Londoff & Knight, St. Charles, Lowell L. Smithson, Spencer, Fane, Britt & Browne, Kansas City, for appellant.
    Rollin J. Moerschel, Niedner, Moersehel, Nack & Ahlheim, St. Charles, for respondents.
   NORWIN D. HOUSER, Special Judge.

Anthony D. Keeven and wife Martha Ann filed suit against St. Charles County Utility Company, Inc. in Count One for damages, alleging trespass and unlawful entry without their consent and permission upon their 100-acre tract in St. Charles County, cutting down trees, opening a trench, installing a sewer line and operating vehicles, equipment and machinery to their damage, and in Count Two for injunctive relief to compel removal of the sewer line and restrain future entry upon and further damage to their land. The utility company filed an answer denying trespass, pleading permission and consent to the entry, denying any intention to re-enter the land and continue the work, and a counterclaim invoking its power of eminent domain, to acquire by condemnation a 20-foot-wide easement right of way across the 100-acre tract for sewer line uses and purposes.

There is no controversy over the fact that the utility, through its contractor, entered Keevens’ land, felled trees, cut a trench and laid a 12-inch sewer line through all but a few feet of the 1,482-foot strip previously platted, before stopping the work and leaving the land on orders of Anthony D. Keeven, and that this work was done without the utility company first having obtained a signed easement document from landowners. The parties agreed that conversations and negotiations over a period of many months were had between Mr. Keeven and his attorney, and Mr. Patty, president of the utility company, respecting the installation of a sewer line across this tract; that the utility entered the property, surveyed and set stakes a number of times, and at various stages of the negotiations proffered to landowners three easement forms for their signatures; that landowners declined to sign any of these documents.

Landowners introduced evidence that in these negotiations no final agreement had been reached; that no permission or consent had been given by them to the utility company to enter the land and install the sewer line. The utility company, contra, introduced evidence that the entries of survey parties, for staking, etc., were understood by Mr. Patty to have been with the consent and permission of landowners; that Mr. Patty understood that a final agreement on an easement contract was reached in July, 1973 at the office of landowners’ attorney, at which landowners were present, by the terms of which the utility would straighten two “dog legs” in the creek area, restore the land as adequately as possible by clearing debris, trash, rubbish and brush, remove rock, provide free connection fees for existing buildings on the land, assist in procuring an easement over adjacent land for better drainage of Keev-ens’ land, and that the route of the line should be according to drawings the parties went over in the lawyer’s office. After that meeting Mr. Patty asked for inspections of the property by and bids and estimates from two contractors reference re-channeling the creek, and in August or September, 1973 the utility restaked the route without objection of landowners. Mr. Patty understood that the work could proceed without an executed easement — that the utility had the consent and permission of landowners to go ahead — and that upon completion of the work to the satisfaction of landowners the latter would then execute a formal easement document. The utility company contracted for the work to be done. Mr. Keeven had told Mr. Ruff, former owner of the utility, “No problem. Come on through any time you want.”

Landowners introduced extensive evidence of trespass; of damage to the land and the area adjacent to the trench, extending at places 100 feet on either side of the trench; strewing of thousands of rocks up to one foot in size on the land, whereby a total of four acres of the 100-acre tract was wasted for agricultural purposes or for use as a sod farm (Mr. Keeven’s principal business). The utility company sought to minimize these damages and introduced evidence that it would have removed the rocks if its contractor had not been run off the job. Evidence of $10,000 economic loss accruing to Mr. Keeven’s sod business from the depredation of the land was introduced and later stricken, after which Mr. Keeven testified that the difference between the reasonable market value of the land before and after the trespass was the sum of $10,-000. The utility, joining issue on the difference between the market value of the land before and after the taking, introduced expert testimony that the difference, not counting special benefits, was $850, but that special benefits to the land enhanced its value by $10,000.

In support of an award for punitive damages landowners introduced evidence that Anthony D. Keeven went on a hunting trip to Idaho, leaving his brother Frank in charge; that when Frank ascertained that the work had begun, and when the trenching machinery had progressed only about 100 feet into the tract, he requested of Mr. Patty that he stop construction, claiming no final agreement had been worked out, stating there was no easement right and that the contractor should get off the property; that Mr. Patty promised to go to the site and notify the contractor immediately to stop construction and get off the premises, but Mr. Patty did not do so; that three days later the line had progressed at least halfway across the land; that Frank Keeven again called Mr. Patty, who promised to go to the site and tell them to get off; that nevertheless construction continued, until Anthony D. Keeven returned and ordered the contractor off the premises. At this time only about 20 or 30 feet of pipe remained to be laid. There was evidence that at no time did Mr. Patty or Frank Keeven tell the contractor to shut down the job.

On the same day the jury returned its verdict the court entered an order of condemnation of a permanent easement over the land for the construction, operation and maintenance of the sewer line, and the right to possession upon payment of the “amount, if any, which may be assessed by the jury, this date, as actual damages.”

Landowners offered Instruction No. 3 (MAI 9.02) directing the jury to award landowners the difference between the fair market value of the whole property immediately before the taking and the value of landowner’s remaining property immediately thereafter; Instruction No. 4 (MAI 16.02) defining “fair market value,” and Instruction No. 6 (MAI 34.03) directing the jury, in determining the value of the remaining property, not to consider any general benefit conferred upon all property within useable range of the sewer system. Landowners also offered Instruction No. 5 (MAI 10.01 modified and MAI 16.01 combined) as follows:

“If you find the issues in favor of plaintiffs, and if you believe the conduct of defendant in appropriating plaintiffs’ property was willful, wanton, or malicious, then in addition to any damages to which you find plaintiffs entitled under Instruction No. 3 you may award plaintiffs an additional amount as punitive damages in such sum as you believe will serve to punish defendant and to deter it and others from like conduct.

“The word ‘malicious’ as used in this instruction does not mean with hatred, spite or ill will, as commonly understood, but means the doing of a wrongful act intentionally without just cause or excuse.”

No instructions were offered or given on the subject of trespass. The utility company offered no instructions.

Notwithstanding the lack of instructions on trespass, that subject was thoroughly argued to the jury. Landowners asked the jury to return a verdict for actual damages for trespass, “and also for the appropriation of the land,” and for a verdict for punitive damages based on malicious acts of the utility company. Landowners argued that there was no agreement between the parties; that Mr. Patty failed to stop the operation and leave the land after promising to do so; that the utility company exhibited an absolute disregard for the property rights of others; that the land was damaged from the rocks; that 4 acres were destroyed. They asked for. $10,000 actual damages for the trespass and wrongs done and for the easement, and $25,000 punitive damages as a warning to others.

The jury returned a unanimous verdict for landowners, reciting that plaintiffs were entitled to both actual and punitive damages, and assessed actual damages in the sum of $4,000 and punitive damages in the sum of $30,000. Judgment was entered upon the verdict. Following the overruling of the motion for new trial the utility company appealed.

It was error to submit Instruction No. 3 on punitive damages in this submission on the issue of condemnation only, without any instruction on the law of trespass.

In Beetschen v. Shell Pipe Line Corp., 248 S.W.2d 66, 70 (Mo.App.1952), this Court said:

“Under the Constitution of 1945, Art. I, Section 26, private property cannot be disturbed nor can the proprietary rights of the owner therein be divested until the damages are ascertained and paid to the owner or paid into court for the owner. A corporation which ignores the statute and the Constitution and makes an entry upon the land of a private citizen without agreement with the owner or without having the damages appraised by commissioners is guilty of a wilful trespass. Cox v. St. Louis, M. & S. E. R. Co., 111 Mo.App. 394, loc. cit. 408, 85 S.W. 989.

“In such case the aggrieved property owner has an election of remedies. He may proceed by way of injunction to restrain the installation, MacMurray-Judge Architectural Iron Co. v. City of St. Louis, 138 Mo. 608, 39 S.W. 467; Carpenter v. City of St. Joseph, 263 Mo. 705, 174 S.W. 53; or he may sue in ejectment, Looker v. Missouri Power & Light Co., 336 Mo. 592, 80 S.W.2d 691, 101 A.L.R. 365; or he may avail himself of R.S.Mo.1949 § 523.090; or he may maintain a common law action for damages. 30 C.J.S. Eminent Domain § 394, page 105.

“If he sues for damages, he may in a proper' case proceed upon the theory of trespass and sue for actual damages, 30 C.J.S. Eminent Domain § 400, page 118, and when the facts warrant it recover punitive damages, or he may waive the tort and sue for the compensatory damages to which he would have been entitled if condemnation proceedings had been instituted prior to the entry. Doyle v. Kansas City & S. R. Co., 113 Mo. 280, 20 S.W. 970; Webster v. Kansas City & S. R. Co., 116 Mo. 114, 22 S.W. 474, loc. cit. 475.

“If he sues for the just compensation preserved to him by the Constitution for the taking of private property for public use, his theory is that of acquiescence in the taking, consent to the appropriation, and in that event he has but one action, in which he must recover all damages, past, present and prospective. * * * ”

This analysis has been followed in subsequent appellate decisions. Beetschen v. Shell Pipe Line Corp., 363 Mo. 751, 253 S.W.2d 785 (1952); Twiehaus v. Wright City, 412 S.W.2d 450, 453 (Mo.1967); Hayden v. Grand River Mutual Telephone Corp., 440 S.W.2d 161 (Mo.App.1969); Harris v. L. P. and H. Constr. Co., 441 S.W.2d 377 (Mo.App.1969).

“In adopting the theory of trespass [landowners did] not acknowledge the right of the corporation to appropriate, nor [did] they acquiesce in the appropriation. On the contrary they [protested] the taking, [and denied] the rights of the trespasser * * *." Beetschen v. Shell Pipe Line Corp., supra, 248 S.W.2d l.c. 71. The utility company, denying the charge of trespass, defensively pleaded that it had the consent and permission of landowners to do these things, then took the initiative and availed itself of its right of eminent domain by way of counterclaim to obtain the desired easement rights. After the issue of condemnation was thus injected into the case landowners joined issue on the question of condemnation and introduced evidence not only on the issue of trespass but also evidence pertinent to the issue of condemnation. When it came to instructing the jury, however, landowners offered a verdict-directing instruction on the issue of condemnation and two other instructions relating to condemnation, but failed to offer any instructions on the issue of trespass. Landowners argued to the jury on both issues, condemnation and trespass, emphasizing that the only time they would be able to recover for the trespass itself, as well as for the easement rights, was in this verdict; that they had been wronged and were entitled to be paid not only for the permanent appropriation of easement rights, but also for the trespass, the ensuing damage to the trees, land, etc., and were entitled to punitive damages “to prevent somebody like that from carrying on this kind of conduct to others * * *

When landowners submitted Instructions Nos. 3, 4 and 6 on the issue of condemnation, and failed to offer instructions on the issue of trespass, they forfeited their right to recover punitive damages. Instructions Nos. 3, 4 and 6, relating solely to the condemnation issue, provided no basis for Instruction No. 5 on punitive damages. Under the pleadings the tort of trespass was the only possible basis for the claim of punitive damages. Instruction No. 3, (MAI 9.02) relating only to the issue of condemnation, provided no such basis. In condemnation landowners may recover “just compensation” under Article I, Section 26, Constitution of Missouri. This means “the full and perfect equivalent in money of the property taken, * * * no more.” City of St. Louis v. Union Quarry & Construction Co., 394 S.W.2d 300, 305[6] (Mo.1965). Just compensation under the Constitution contemplates actual, compensatory damages, but not punitive damages. By not requesting instructions on trespass landowners deprived themselves of any basis for the recovery of punitive damages. “It is a general rule that, in order to recover exemplary or punitive damages, actual damages must be shown, or there must be a basis for the recovery of compensatory damages', even though the elements otherwise authorizing the recovery of exemplary or punitive damages may exist. As it has been otherwise stated, expressly or in substance, exemplary damages cannot constitute the basis of a cause of action, but are merely incidental to the cause of action.” 25 C.J.S. Damages § 118, p. 1121. The verdict and judgment for punitive damages cannot stand.

By their failure to go to the jury on trespass respondents, however, did not make a final, conclusive and binding election of remedies in the strict sense of the term, for all time, all purposes and all subsequent litigation. The record clearly shows that respondents had no intention to abandon their trespass claims. Although they failed to offer or request instructions on trespass they continued to press these claims, asserting them with vigor in argument, thereby substantially contributing to the return of the $4,000 and $30,000 verdicts. Their failure to offer instructions on trespass apparently was due to inadvertence, mistake or ignorance of the legal effect of that failure. They simply misconceived the proper procedure to lay the foundation for a supportable verdict for actual and punitive damages in trespass.

We are aware of the rule that “ * * * where a party has a right to pursue one of two inconsistent remedies, makes his election, institutes suit and prosecutes it to final judgment, or receives something of value on the claim, he cannot thereafter pursue another and inconsistent remedy. Tooker v. Missouri Power & Light Co., 336 Mo. 592, 80 S.W.2d 691, 101 A.L.R. 365; Cowan v. Young, 282 Mo. 36, 220 S.W. 869.” Pemberton v. Ladue Realty & Construction Co., 359 Mo. 907, 224 S.W.2d 383, 385[5] (1949). Respondents, however, did not prosecute the condemnation claim to final judgment. There has been no final judgment. Nor have respondents become finally entitled to something of value on that claim. (We are advised that they took down the $4,000 deposited in the registry of the court but that is not conclusive because they are subject to an order to restore that sum if final judgment goes against them.)

That respondents misconceived the proper procedure is not enough to prevent respondents on a new trial from pursuing their trespass claims in proper fashion. The following of a mistaken remedy (or procedure) is not the pursuit of an inconsistent remedy, so as to amount to an election. Pemberton, supra, 224 S.W.2d l.c. 385[5, 6]; DeMott v. Great American Ins. Co. of New York, 234 Mo.App. 31, 131 S.W.2d 64, 67[10] (1939); State, at inf. of Dalton ex rel. Tucker v. Mattingly, 275 S.W.2d 34, 39[5] (Mo.App.1955); Autocar Sales & Service Co. v. Holscher, 11 S.W.2d 1072, 1074[4] (Mo.App.1928); 28 C.J.S. Election of Remedies § 12 p. 1080; 25 Am. Jur.2d Election of Remedies § 22, p. 664. If in fact appellant entered the land, destroyed trees, cut a trench and installed its facilities without the knowledge or consent of the landowners and without process of law, as respondents claim, it would be a travesty of justice to deprive them of an opportunity to prove these facts on a new trial simply because they inadvertently failed to instruct on trespass at the first trial. On remand respondents are entitled to introduce evidence in support of their petition for damages for trespass, actual and punitive, and to offer instructions thereon.

Nor can the verdict for $4,000 actual damages stand, because of the confusing and improper manner in which this case was submitted and argued. As we have seen, landowners failed to offer, and the court did not give, instructions on the theory of trespass. Landowners offered and the court gave only instructions on condemnation. Nevertheless, landowners strenuously argued the trespass (events which took place prior to the “taking”), asking for actual damages done by the alleged unauthorized invasion of the land, destruction of trees, etc., and for punitive damages in connection therewith. Without the benefit of instructions on the law of trespass; without any guide or compass on the measure of actual damages for trespass; they were asked to respond to landowners’ claims for actual and punitive damages for trespass. They were instructed on the law of condemnation, had before them an instruction on punitive damages, and were urged to award just compensation for ' the easement rights — the difference in fair market value before and after the taking. We cannot ascertain how much, if any, of the $4,000 verdict was awarded for an unlawful trespass (not submitted by instructions) and how much was awarded under condemnation Instruction No. 3. This improper blending of the two causes of action of trespass and condemnation, without an instruction on the law of trespass, inevitably confused the issue, invalidated the $4,000 verdict and requires appellate intervention.

Accordingly, the judgment for $4,000 actual and $30,000 punitive damages is reversed, and the cause is remanded for a new trial.

If the pleadings and evidence at the new trial are essentially the same as on the first trial landowners may submit their case on the theory of trespass, for actual and punitive damages; the utility may submit its defense to the trespass claim on the basis of permission and license, and instructions on the condemnation issue should be given.

SMITH, C. J., and ALDEN A. STOCK-ARD, Special Judge, concur.


source: Caselaw Access Project

author:
RENDLEN, Judge.
      McMILLIAN, Judge

license: Public Domain

text:
    STATE of Missouri ex rel. Patrick BURKE, Relator, v. Honorable Robert Lee CAMPBELL, Judge, Circuit Court, St. Louis County, Missouri, and F. William Human, Jr., Chairman, Marjorie Pharis, Ellie James and Jerome Mandelstamm, Being the Board of Election Commissioners, St. Louis County, Missouri, Respondents, and John L. Lawler, Jr., Intervenor-Respondent.
    No. 38361.
    Missouri Court of Appeals, St. Louis District, Division One.
    Sept. 28, 1976.

      Carroll J. Donohue, Husch, Eppenberger, Donohue, Elson & Cornfield, St. Louis, for relator.
    Eugene P. Walsh, Walsh, Howe & Ebert, Clayton, for intervenor-respondent.
    Norman C. Parker, St. Louis, for respondents.
   RENDLEN, Judge.

This is an original proceeding in prohibition. Relator, a candidate for the Democrat nomination for State Representative from the Fifty-Fourth Missouri District, first petitioned the Circuit Court of St. Louis County for prohibition, seeking to prevent the St. Louis County Board of Election Commissioners from placing, or to require them to remove the name of interve-nor John L. Lawler, Jr., from the Democrat ballot as a candidate for State Representative in the primary election scheduled for August 3,1976. Relator claimed Lawler had not been a qualified voter for two years next before the date of the primary election and was therefore unqualified for the office. The petition further alleged that respondent Board of Election Commissioners had proceeded with the preparation of the ballots bearing the name of Lawler as a candidate and intended to present the ballot for usage at that election, all “in excess of . and . . . beyond their jurisdiction ... in violation of the requirements of Article III, Section 4, Constitution of 1945, and Section 21.080 RSMo. . ” The Honorable Robert Lee Campbell, Judge of the Circuit Court and one of the respondents here, denied relief concluding Lawler had been a “qualified voter” for two years prior to the August 1976 primary election within the meaning of the cited constitutional and statutory sections, because he had been a qualified voter either in Tulsa, Oklahoma, or St. Louis County, Missouri, during that period.

Relator now petitions this court for prohibition seeking: (1) to prevent respondent Campbell from “continuing and persisting in his denial of a preliminary writ of prohibition”; or (2) to compel respondent Campbell to issue the preliminary writ of prohibition requested July 12, 1976; or (3) to directly prohibit respondent Board of Election Commissioners from placing intervenor Lawler’s name on the ballot.

The material facts regarding the candidate’s residence, registration and voting experience during the past three years are undisputed. Lawler had been a resident of the City of St. Louis prior to August 1973 when he found employment and moved to Tulsa, Oklahoma, but maintained his St. Louis home until January 1974. He can-celled his voter registration in the City of St. Louis in August 1974 then registered and voted in the Oklahoma primary and general elections during the fall of that year. Returning to Missouri in December 1974, he established his residence in the Fifty-fourth Representative District in April 1975, failing however to register as a voter in the county until February 1976, some ten months after making Missouri his home.

On July 27, 1976, this court issued its alternative writ of prohibition directing respondent Board of Election Commissioners to refrain from placing the name of John L. Lawler, Jr., on the Democratic ballot as a candidate for such office in the August primary election. For reasons we shall discuss, following hearings on July 30, 1976, the alternative writ was made absolute.

It is settled that prohibition will lie to prevent Boards of Election Commissioners from placing the names or printing primary ballots bearing the names of candidates seeking office who fail to meet statutory requirements for such office. State ex rel. Gralike v. Walsh, 483 S.W.2d 70, 74[3] (Mo.banc 1972). Further it is clear that our orders may go directly to the actions of the Board.

The question here is whether intervenor Lawler qualifies as a candidate for the office of State Representative under the provisions of Section 21.080 and Article III, Section 4 of the Missouri Constitution, which in pertinent part is as follows:

“Qualifications of representatives
Section 4. Each representative shall be twenty-four years of age, and next before the day of his election shall have been a qualified voter for two years and a resident of the county or district which he is chosen to represent for one year, . ” (Emphasis ours.)

The statutory qualifications for voters in the Fifty-fourth Representative District, which lies wholly in St. Louis County, are found in Chapter 113, RSMo. 1969, V.A.M.S. Section 113.010 requires that in counties having “more than seven hundred thousand inhabitants, [St. Louis County] there shall be a registration of all qualified voters and the conduct of primary, general and special elections, . . . held in such counties, shall be governed by the provisions of sections 113.010 to 113.420 . . ” Section 113.340 provides that “[t]he vote of no one shall be received by the judges whose name does not appear upon the registry as a qualified voter.” In 1973 this voter registration requirement was extended statewide by Section 114.016(1) which mandates: “No person shall be permitted to vote in any election unless he is duly registered and unless his name thereby appears in both the county record and the precinct record for the county and precinct in which he resides.” (Emphasis ours.) The Missouri Supreme Court in State ex rel. Socialist Workers’ Party of Missouri v. Kirkpatrick, 513 S.W.2d 346, 347 (Mo.banc 1974), commenting on this section, noted that a very limited exception appears in Sections 113.031 and 111.041 which provide a method whereby unregistered persons who have resided in this state for more than thirty days and less than one year may vote for presidential electors but for no other officers. This special exception does not affect our interpretation of Article III, Section 4.

The phrase “qualified voter,” which appears in several constitutional and statutory provisions, was given early judicial consideration in State ex rel. Woodson v. Brassfield, 67 Mo. 331, 337 (1878), in which the Supreme Court construed the phrase as it appeared in Article XI, Section 14 of the 1865 Missouri Constitution. That section, provided no town was authorized to become a stockholder in any corporation unless by election, two-thirds of the qualified voters of such town approved the action. The court there held that one not registered, though otherwise qualified would not be considered a qualified voter, stating:

“While the registration law was in force, they only were qualified voters whose names were placed on the registration books. This was the final, qualifying act, and no matter if a citizen possessed every other qualification, if not registered, he was not a qualified voter. It was not the right to register which constituted one a qualified voter, but the fact being registered as such, was also essential. A qualified voter is one who by law, at an election, is entitled to vote. If, by the law, a person was not entitled to vote, whether in consequence of a disability which deprived him of the right to register, or of his neglect to register with a perfect right to do so, he was equally disqualified.”

Similarly the court in State ex rel. Socialist Workers’ Party of Missouri v. Kirkpatrick, supra at 346-7[1], interpreting the phrase “qualified voter” as used in Section 120.-160(3) for purposes of deciding if a candidate’s nominating petition contains sufficient lawful signatures, stated:

“While there have been cases holding both ways on the question here presented it is our view that the better reasoned cases are those that rule that a ‘qualified voter’ is one that, in addition to other qualifications, must be registered where such is required as a condition for voting.”

The court then favorably cited 29 C.J.S. Elections § 1(8), p. 23, as follows:

“ ‘A “qualified voter” is one having the constitutional qualifications for the privilege, who is duly registered pursuant to law, and has the present right to vote at the election being held.’ ”

In Scott v. Kirkpatrick, 513 S.W.2d 442, 444 (Mo.banc 1974), our Supreme Court interpreted the phrase “qualified voter” appearing in Section 126.151 as making registration a prerequisite for signers of initiative petitions.

Guided by these eases and considering related constitutional and statutory provisions bearing on the section involved here, we construe the phrase “qualified voter" in Article III, Section 4, to mean one who appearing at a proper polling place may receive and cast a ballot in any regular or special election. If we accept intervenor’s position that one may be a qualified voter although not registered to vote and carry the argument to its logical conclusion, such would permit a person to present himself as qualified to represent a district in the General Assembly though not qualified to vote in local elections. We do not believe the framers of Article III, Section 4, intended that one not qualified to vote in his own election might serve as State Representative and no such strained construction will be placed on this provision.

Concerning Lawler’s time in Tulsa, we do not reach nor decide if the period when he qualified as a registered Oklahoma voter can be added to the subsequent period of Missouri residency to meet the two-year voter qualification requirement, since during the ten months of April 1975 through February 1976, Lawler though resident in the district was not qualified to vote. It may be properly stated he was qualified to register during that period, but was not a “qualified voter” in the sense that expression is used in Article III, Section 4 of the Missouri Constitution.

Intervenor also challenges the two-year “qualified voter” requirement as a violation of the Equal Protection Clause of the Fourteenth Amendment. It should be noted that the court in Gralike, supra at 76[4], held the residency requirement of one year in the district for State Senatorial candidates did not violate the Equal Protection Clause. We find the reasoning of Gralike, that a state may establish and enforce reasonable requirements for officeholders, compelling and rule against intervenor on this point.

Finally we are not unaware of the court’s admonition in Gralike, supra at 76[5], that challenges to the eligibility of a candidate should be made at the earliest opportunity. However, during argument it was conceded by counsel for the Board, that although inconvenience and added expense would result from the change, there was sufficient time and available personnel to prepare the ballot without intervenor’s name and permit the election to proceed as scheduled.

For the reasons stated herein, the alternative writ was made absolute July 30, 1976, prohibiting respondent Board of Election Commissioners of St. Louis County from placing the name of John L. Lawler, Jr., on the ballot as a candidate for nomination for the Missouri House of Representatives, Fifty-fourth District, at the primary election of August 3, 1976.

WEIER, P. J., concurs.

McMILLIAN, J., concurs in results only in separate opinion and dissents in part.

McMILLIAN, Judge

(concurs in results only and dissents in part.)

I concur in the result reached by the majority and with those portions of the opinion which establish prohibition as the proper remedy. I agree with the majority conclusion that Intervenor Lawler is not a qualified candidate for State Representative only because Lawler failed to show that he had been a resident of Missouri for the requisite two-year period “next before the day of his election” in November, 1976. See State ex rel. King v. Walsh, 484 S.W.2d 641, 644-46 (Mo.banc 1972) for a discussion of residency. However, I respectfully dissent from the conclusion held by the majority that one must be a registered voter to be a qualified candidate under Art. Ill, § 4, and on the equal protection aspects of the case.

The right to hold public office is one of the valuable rights of citizenship. Turner v. Fouche, 396 U.S. 346, 362-63, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970) and Preisler v. City of St. Louis, 322 S.W.2d 748, 753 (Mo.1959). It is a basic and universally accepted rule that statutory and constitutional provisions which tend to limit the exercise of this right or exclude any citizen from participation in the election process must be strictly construed in favor of the right of voters to exercise their choice. These rights should not be declared prohibited or curtailed except by plain provisions of the law. Ambiguities are to be resolved in favor of eligibility to office. 67 CJS Officers § 11 (1950); accord, Application of Lawrence, 353 Mo. 1028, 185 S.W.2d 818, 820 (Mo.1941), and Chomeau v. Roth, 230 Mo.App. 709, 72 S.W.2d 997, 999 (1934) and see State ex rel. Socialist Workers’ Party of Missouri v. Kirkpatrick, 513 S.W.2d 346, 351 (Mo.banc 1974) (dissenting opinion). By engrafting a registration requirement on Art. III, § 4, the majority adds an unwarranted restriction on the right to hold public office not clearly required by our constitution. As an equally compelling argument can be made that registration is not required to make a candidate a “qualified voter,” we should not construe the constitution in such a way as to further restrict eligibility to office.

In my view, it is reasonable to conclude that “qualified voter” as contemplated by Art. Ill, § 4, means those substantive qualifications possessed by a citizen, as measured by the constitution, which entitle him to be a voter; that is, one who has met the durational residency, citizenship, age and mental competency requirements, and who has not been convicted of a felony or crime connected with the right of suffrage. It is also reasonable to conclude that these qualifications are recognized as existing distinct from the right to vote, in that the existence of these substantive qualifications must be evidenced by registration before a citizen is permitted to exercise his right as a voter. Under our constitution, failure to register does not appear to destroy a citizen’s status as a qualified voter for all purposes, the only legal effect is to deprive him of a vote in an election for which registration is required. Registration is a police regulation governing what a citizen must do in order to vote in an election. “. . . The primary purpose of registration laws is to prevent fraudulent abuse of the franchise, by providing in advance of elections an authentic list of the qualified voters.” State ex rel. Hay v. Flynn, 235 Mo.App. 1003, 147 S.W.2d 210, 211 (1941) and Dysart v. City of St. Louis, 321 Mo. 514, 11 S.W.2d 1045, 1050 (Banc 1928). “The purpose of registration statutes is to protect the purity of the ballot box by ascertaining before the vote is cast whether such person possesses the qualifications to vote, and by preventing impersonation thereafter at the polls.” 25 Am. Jur.2d, Elections § 95.

Our Supreme Court early held that registration laws do not impose an additional qualification on the right of suffrage, noting that, “. . . [t]he power to provide for the orderly exercise of the right of suffrage . . . includes the power to enact registry laws, and to prohibit from voting persons not registered. It is now generally admitted that these laws do not add to the constitutional qualifications of voters . . . ” State ex rel. McCaffery v. Mason, 155 Mo. 486, 55 S.W. 636, 642 (1900). Mason v. State of Missouri, 179 U.S. 328, 21 S.Ct. 125, 45 L.Ed. 214.

Voter registration has had a checkered history in Missouri. Under the 1865 Missouri Constitution, universal voter registration was required. This provision was deleted from the 1875 Constitution and replaced with a provision directing the General Assembly to provide for registration of voters in areas having a certain population, but not otherwise. Under the 1945 Constitution, currently in force, registration of voters is authorized by Art. VIII, § 5, which provides “Registration of voters may be provided for by law.” (Emphasis added.) Currently, universal registration is required by statute, § 114.016(1), Laws 1973. Prior to 1973, registration was not required in many areas of the state.

Given the history and purpose of registration laws in this state, it is probable that the framers of the 1945 Constitution and the people adopting it did not intend that “qualified voter” mean registered voter in the context of defining eligibility to, or qualifications for, office. Such interests as preventing fraud at the ballot box are not relevant in determining a candidate’s qualifications for office. Further, it is not reasonable to assume that it was intended that the right to run for public office should depend on what the legislature chooses, from time to time, to do about voter registration.

The majority has not cited one case involving eligibility to office or qualifications to hold office where it was held that registration was necessary to make the candidate or person elected a qualified voter. On the other hand, my research has revealed at least three other jurisdictions with similar constitutional and statutory provisions holding that in such cases registration is not required to make one a qualified voter. Meffert v. Brown, 132 Ky. 201, 116 S.W. 779, 780 (1909); Gilbert v. Breithaupt, 60 Nev. 162, 104 P.2d 183 (1940); Trammell v. Griffin, 141 Tenn. 139, 207 S.W. 726 (1918) and 128 A.L.R. 1111.

Further, the cases cited by the majority do not require such a* construction. These cases concern the definition of “qualified voter” or “legal voter” as used in the context of voting in an election, State ex rel. Woodson v. Brassfield, 67 Mo. 331 (1878), or voter participation in a species of election. State ex rel. Social Workers’ Party of Missouri v. Kirkpatrick, 513 S.W.2d 346 (Mo. banc 1974) (nominating petitions) and Scott v. Kirkpatrick, 513 S.W.2d 442 (Mo.banc 1974) (initiative petitions). In such circumstances, it is apparent that the purpose of registration laws in preventing voter fraud is relevant, and reasonable to assume that the framers and the legislature intended that registration was a required “qualification.” The court in Socialist Workers’ Party, supra, relied heavily on the notion that registration was required to sign nominating petitions in order to protect against fraud. The Scott v. Kirkpatrick decision defined “qualified voter” in the narrow context of a statute which required that a signer of an initiative petition be a “qualified voter” who at the time it is presented to him is legally entitled to vote on the measure it proposes. The court concluded that a qualified voter legally entitled to vote was a registered voter. However, neither decision indicated that such must be the meaning of qualified voter in other contexts. It must also be noted that Brass-field, on which the majority places its principal reliance, concerned a construction of a provision of the 1865 Constitution under which uniform voter registration was clearly required by the constitution, not by statute, as in the instant case. Further, the quoted portions of that case failed to receive a majority vote of the court.

The majority opinion in this case operates to limit the right to public office. They have added registration requirements upon a constitutional provision that does not deal with voting at all, but pertains exclusively to defining eligibility to, or qualifications for, the office of State Representative. The constitution does not clearly require such a construction. It must be presumed that the writers of our constitution were literate and intelligent men and women. If, by the expression, “qualified voter,” the framers had intended registration to be required, they could have so stated.

I must also express some reservations as to the equal protection aspects of this case. As I understand Intervenor Lawler’s contention, he argues that if voter registration is a required qualification for the office of State Representative, he has been denied the equal protection of the laws as guaranteed by the Fourteenth Amendment to the Federal Constitution in that the Missouri Constitution does not impose such requirements for certain other state offices, i. e., governor, lieutenant governor, and state auditor. Lawler argues that two classes of persons have been created and that he, and other persons so situated, have been invidiously discriminated against without reasonable justification by the registration requirement. This contention raises serious problems which do not need to be decided here in view of my initial conclusion that Intervenor Lawler has failed to meet the two-year Missouri residency requirement. However, it must be noted that at least one state Supreme Court has found a constitutional violation under similar circumstances. Gangemi v. Rosengard, 44 N.J. 166, 207 A.2d 665 (1965).

For reasons given herein, writ should be made absolute.

      . John L. Lawler, Jr., on oral motion intervened in the Circuit Court action and without objection continued in that status in the proceedings here.

      . All statutory sections cited are RSMo. 1969, V.A.M.S., unless otherwise noted. All constitutional provisions are Missouri Constitution 1945, as amended.

      . Intervenor emphasizes that he registered in February, 1976, thus qualifying to vote in this year’s elections, but is forced to argue that he was qualified to vote even during the period prior to February 1976 when not registered.

      . Intervenor it appears was not a qualified voter under Oklahoma law after he moved his residence and became a citizen of Missouri in either December 1974 when he came to the State or in April 1975 when he purchased his home and declared his residence as St. Louis County. Article III, Section 1 of the Oklahoma Constitution provides that: “Qualified electors of this state shall be . citizens of the state . . . ” (Emphasis ours.) When Lawler left Oklahoma and made Missouri his home, he was no longer a “qualified elector” of Oklahoma.

      . All constitutional provisions cited are Missouri Constitution 1945, as amended, unless otherwise noted.

      . Art. 8, § 2, entitled “Qualifications of voters —disqualifications” as amended in 1974 provides: “All citizens of the United States, including occupants of soldiers’ and sailors’ homes, over the age of eighteen who are residents of this state and of the political subdivision in which they offer to vote are entitled to vote at all elections by the people, if the election is one for which registration is required if they are registered within the time prescribed by law, or if the election is one for which registration is not required, if they have been residents of the political subdivision in which they offer to vote for 30 days next preceding the election for which they offer to vote: Provided however, no person who has a guardian of his or her estate or person by reason of mental incapacity, appointed by a court of competent jurisdiction and no person who is involuntarily confined in a mental institution pursuant to an adjudication of a court of competent jurisdiction shall be entitled to vote, and persons convicted of felony, or crime connected with the exercise of the right of suffrage may be excluded by law from voting.”


author: SMITH, Chief Judge.

text:
    R_ S_ M_, Respondent, v. J_ D_ M_, Appellant.
    No. 37157.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Sept. 28, 1976.

      Hale W. Brown, Kirkwood, for appellant.
    Alfred J. Rathert, Fenton, for respondent.
   SMITH, Chief Judge.

The husband appeals from a judgment awarding custody of the couple’s minor son to the wife in a dissolution of marriage case.

The husband challenges the trial court’s determination that the mother was the proper custodian as contrary to the evidence. In view of our ruling on the husband’s other point we do not reach that issue. That other point is that the court erred in refusing to permit the minor child to testify.

Both parties attempted to show that the other was guilty of sexual misconduct detrimental to the well-being of their minor son. Wife’s evidence was directed toward certain alleged homosexual conduct by the husband with a 13 year old boy. Impropriety was vigorously denied by the father. The father’s evidence was directed to the alleged openly adulterous relationship of the wife after separation. It was also claimed by husband that the wife left the boy alone for lengthy periods at night while accompanying her boyfriend. Wife denied any sexual activity with the man or that she left the boy alone, although she freely admitted extensive, almost continuous social contact with the man. The minor son was 8 years 10 months old at the time of trial. The court found neither parent to be unfit as a custodian. Wife was given custody of the son, with extensive temporary custody and visitation granted to the husband.

The husband attempted to call the son as a witness, which the court refused. No voir dire of the son was conducted, nor does the record reflect that any interview of the boy was conducted. The court refused husband’s request on the basis that it was not in the best interests of the child to permit him to testify on the conduct of his parents or to express a choice of custodian. Husband contends that the minor should have been allowed to testify as to both matters. There was at least inferential support in the evidence that both parents had used the child as a weapon against the other, a practice which at best is childish and at worst sadistic.

Sec. 452.375(2) provides that in determining custody of a child one of the relevant factors is the wish “of [the] child as to his custodian.” See. 452.385 RSMo. 1969, provides that the court may determine such preference by interview in chambers with counsel present and participating. Such a procedure is discretionary. In Johnson v. Johnson, 526 S.W.2d 33 (Mo.App.1975) we held it was not error for a court not to interview a child of tender years as to his preference. Such a child is too young to have a rational basis for a preference and even subjecting him to expressing a preference may have serious adverse effects. Exactly what age is too young we do not attempt to establish here. We believe it the preferable procedure, if there is doubt, for the court to conduct a voir dire examination or interview to determine whether the child is capable of a rational preference. Here, however, we do not find an abuse of discretion in the court’s determination that a child less than nine could not make a rational choice. Children of that age frequently make such decisions upon considerations unrelated to their welfare.

As to permitting the child to testify concerning the activities of his parents, we arrive at a different conclusion. A parent has a right to call upon his children, if competent, to testify in a child custody proceeding where such evidence is relevant. J. L. W. v. D. C. W., 519 S.W.2d 724[14] (Mo.App.1975). It is the obligation of the trial court to determine by proper voir dire examination that a child is competent to testify “and by the same token it is equally his duty to determine by a proper voir dire examination, that the child is incompetent before precluding it from testifying.” Benjamin v. Benjamin, 370 S.W.2d 639[5-7] (Mo.App.1963). No such voir dire was conducted here, and the expressed reason for refusing to allow the child to testify was not a lack of competence.

What we said in J. L. W. v. D. C. W. [14] is applicable here:
“However, we have an aversion to requiring a child of tender years to testify in a child custody proceeding as to the immoral behavioral attributes of his parents. Thus, if the trial court has before it some basis to believe that requiring the child to testify would be detrimental to the best interests of the child, it may exercise its discretion in refusing to require the child to testify.”

The record does not show any basis for the court’s conclusion that testifying would not be in the best interests of the child. Some of the claimed misconduct of the wife, such as leaving the child alone for lengthy periods at night, does not appear on its face to be so traumatic to the child that he would inevitably be injured by testifying about it. Nor would testimony concerning sexual activity or absence of it by the wife necessarily have such traumatic effect, depending upon the maturity, intelligence and sophistication of the child, and the degree of direct exposure to the conduct. These matters could and should have been determined by voir dire examination or interview on the record, either in court or in chambers. What effect such testimony, if permitted following voir dire, might have on the determination of custody we cannot know. In a close ease, as this one is, it could be critical.

We therefore remand the case to the trial court for its examination into the competency of the child to testify and to determine whether the child’s welfare warrants allowing him to testify if competent. If additional information is now available to assist in the determination of the custody question, the trial court should hear and receive such other relevant and competent evidence.

The judgment awarding custody is reversed and cause remanded for further proceedings in accordance with this opinion.

NORWIN D. HOUSER and ALDEN A. STOCKARD, Special Judges, concur.


author: ROBERT LEE CAMPBELL, Special Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Roy Elmer McINTOSH, Defendant-Appellant.
    No. 9927.
    Missouri Court of Appeals, Springfield District.
    Sept. 29, 1976.

      John B. Newberry, Springfield, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before HOGAN, P. J., FLANIGAN, J., and CAMPBELL and PYLE, Special Judges.
   ROBERT LEE CAMPBELL, Special Judge.

Defendant was charged with possession of a forged instrument with intent to utter and was convicted of forgery under § 561.-011, RSMo 1969, V.A.M.S. In accordance with the verdict of the jury, defendant was sentenced to a term of seven years in the custody of the Missouri Department of Corrections. Defendant appeals. Inasmuch as we hold that the State failed to make a submissible case, we need not consider other allegations of error.

On May 27, 1973, Harvey Rector, a police officer of the City of Springfield, Missouri, stopped a motor vehicle for violation of an electric signal. Pursuant to customary procedure of the department, Officer Rector asked each occupant of the motor vehicle for identification. Defendant, seated in the right rear seat of the motor vehicle, gave his name as Coffer Day and furnished the officer with a Dial-A-Friend card bearing said name. The officer observed defendant attempting to hide a piece of paper under his leg. Officer Rector went to the other side of the vehicle and seized the piece of paper as defendant was attempting to return it. to his wallet. The piece of paper was the money order which formed the basis of defendant’s conviction.

Officer Rector returned to his patrol car with the money order, “called headquarters and gave them the serial number from this money order and asked them to run it through the computer for stolen.” The officer waited “to hear back from headquarters.” Defendant was then placed “under arrest for possession of stolen money order.”

A 16-year-old occupant of the car testified that he had accompanied defendant to Kansas. City and posed as his son while defendant cashed checks. He also saw defendant writing on checks or money orders. There was no evidence adduced to show that any such checks were unlawfully cashed.

In its brief, the State argues that in order to prove an element of the crime charged herein, the State may employ either direct or circumstantial evidence. The State quotes from State v. Gantt, 504 S.W.2d 295, 301[11] (Mo.App.1973), as follows:

“In determining the sufficiency of the evidence, this court must accept all evidence, circumstantial or direct, tending to support the conviction together with all favorable inferences reasonably to be drawn therefrom. [Cases cited] It is not our function or prerogative to weigh the evidence or to judge the credibility of the witnesses. Those responsibilities lie solely within the province of the jury.”

The State argues that the jury may infer the money order was stolen because defendant identified himself as Coffer Day and because defendant was arrested by the officer after he had radioed headquarters reporting the serial number and asking it to be checked to see if it was stolen.

The fallacy of the State’s argument is that proof that the money order was stolen would not be sufficient to support a conviction. under the forgery statute. Section 561.011, RSMo 1969, V.A.M.S., makes it unlawful “[f]or any person with the intent to defraud to make or alter any writing of any kind having legal efficacy or commonly relied upon in business or commercial transactions, so that it purports to have been made by another, or at another time, or with different terms”. In order to sustain a conviction for violation of this statute, there must be some evidence that the writing has been unlawfully made or altered. The record is devoid of any such evidence. For this reason, the judgment and conviction cannot stand.

Even though we hold that the State failed to make a submissible ease, we decline to discharge defendant where it appears that the deficiency in the evidence might be available to the prosecutor upon retrial. Accordingly, the judgment of conviction is reversed and the cause remanded for new trial.

All concur.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Walter Eugene MORSE, Defendant-Appellant.
    No. 10124.
    Missouri Court of Appeals, Springfield District.
    Sept. 29, 1976.

      Paul Crider, Jr., Public Defender, John D. Wiggins, Asst. Public Defender, 25th Judicial Circuit, Rolla, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before HOGAN, P. J., FLANIGAN, J., and CAMPBELL and PYLE, Special Judges.
   ROBERT LEE CAMPBELL, Special Judge.

Defendant was convicted by a jury of the offenses of burglary and stealing and was sentenced by the court pursuant to the provisions of the Second Offender Act, § 556.-280, RSMo 1969, V.A.M.S., to a term of four years in the custody of the Missouri Department of Corrections on each charge, said sentences to be served concurrently. By special order we allowed late filing of a notice of appeal. We have examined the transcript, reviewed defendant’s allegations of error on appeal, and find no error. We affirm.

On August 14, 1973, at approximately 2:00 a. m., while parked off . of Highway V about 200 feet south of defendant’s residence, Trooper Larry Owen of the Missouri State Highway Patrol observed defendant’s pickup truck with camper attached approaching from the north without headlights. Trooper Owen immediately started his own vehicle to intercept defendant. Defendant pulled into his driveway before reaching the trooper. Trooper Owen approached defendant’s residence from the opposite direction and pulled into the driveway behind defendant. Trooper Owen advised defendant he was under arrest for driving without headlights and went back to his patrol car to obtain a summons. On the way back, he shined his flashlight into the rear of defendant’s camper and observed a large commercial air conditioner and a cooling unit described as an “A” coil. Defendant was taken into custody and a wrecker towed defendant’s pickup truck to State Highway Patrol Headquarters.

The officers of the Missouri State Highway. Patrol observed through the rear window of defendant’s camper that the air conditioner was a Heil Quaker model and through excellent police investigation contacted the manufacturer to determine if any such air conditioner had been sold in the area of defendant’s arrest. The officers were advised that such an air conditioner had been purchased by the Liberty Church of Christ at Belle, Missouri. Prompt investigation disclosed that between Sunday evening, August 12, and defendant’s arrest on August 14, the air conditioner had been stolen from the church. In addition, the padlock had been broken off of the rear window of the church and the “A” coil removed from the basement of the church. Upon learning of the burglary and theft of the air conditioner from the church, the troopers obtained a warrant, searched defendant’s truck and seized the air conditioner, all within hours of defendant’s arrest. Tire tracks at the scene where the air conditioner was stolen matched one of the front and one of the rear tires of defendant’s pickup truck.

At the outset, defendant strenuously contends that the air conditioner and all evidence relating thereto should not have been received in evidence over his objection, for the reason that the court erred in overruling his motion to suppress such evidence prior to trial. At the hearing, defendant admitted that he was operating his motor vehicle without lights, stating that “it was a moonlight night. It was just like day.”

Defendant concedes that if the . arrest for driving without headlights had been made on the public highway, the troopers had the right to impound his motor vehicle; however, defendant argues that he was arrested by pretextual arrest and that the seizure of his motor vehicle, was beyond the statutory power of seizure granted to the highway patrol in § 43.200, RSMo Supp. 1973, V.A.M.S. Said statute provides “that the members of the patrol shall have the power of search and seizure on a public highway of this state, or off the public highways of this state as an incident to an arrest made following a hot pursuit from a public highway.” Defendant contends that the trooper was not in hot pursuit at the time of defendant’s arrest. We hold that under the facts, the trooper was in hot pursuant and could seize and impound defendant’s motor vehicle. Having so held, we need not rule on the trooper’s right to search the vehicle at the scene based upon, inter alia, his knowledge of defendant’s pri- or criminal activities, defendant’s operating his camper up the highway and into his driveway at 2:00 a. m. without headlights, and the presence of a large commercial type air conditioner plainly visible through the window of the camper.

Defendant next contends that the court erred in permitting Lieutenant Tinnin of the State Highway Patrol to give his opinion that photographs taken by him of the tire tracks at the scene of the burglary matched the tires on defendant’s truck. Lieutenant Tinnin had thirteen years of experience in taking pictures of car tracks and comparing them to various tires. The admission of such expert testimony was within the discretion of the trial court. State v. Brown, 291 S.W.2d 615, 619[5, 6] (Mo.1956).

Defendant contends the court erred in failing to grant his request for mistrial following improper closing argument. The court did not err in failing to grant a mistrial when the prosecutor argued that “this is a burglary from the House of God,” and “Thou shall not steal.” Defendant’s objection to such jury argument was sustained and the jury was admonished to disregard such argument. Defendant obtained more relief than he deserved. He certainly was not entitled to a mistrial. State v. Heinrich, 492 S.W.2d 109 (Mo.App.1973), cited by defendant, has no application to such closing argument.

The prosecutor’s argument that there was “no evidence to the contrary” was not a comment on the failure of the defendant to testify in violation of Rule 26.08, V.A.M.R. Although the prosecutor repeated statements to this effect several times, each statement was related to specific evidence of the State. The prosecutor did not connect such statement with the defendant or his failure to testify. In State v. Craig, 406 S.W.2d 618, 624[12] (Mo.1966), it was pointed out that such argument has been ruled many times not to be an improper comment on defendant’s failure to testify. By way of caution, a trial court should always preclude such argument if it could in any way be inferred as a comment upon defendant’s failure to testify.

Defendant’s fifth and final point is that the court erred in failing to grant a mistrial when certain jurors admitted having heard a radio broadcast on the morning previous to trial which disclosed that defendant was being brought from the penitentiary for trial. On the record before us, there is no question or answer of any juror which would indicate to the trial court that prejudice might result if a mistrial were not declared. Defendant relies upon the footnote in State v. Keeny, 431 S.W.2d 95, 97, n. 2 (Mo.1968), referring to a publication of information so close to the time of trial that the inadmissible details would still be fresh in the minds of the jury panel. In this case, no details were included in the news broadcast, and there is no record before us to indicate that any juror would be prejudiced by reason of the news broadcast. The published information in the Keeny case was a far cry from the simple comment before us.

Pursuant to Rule 28.02, V.A.M.R., we have examined the indictment, verdict, judgment and sentence, which are sufficient. Although we do not condone the lack of specificity at the time of allocution and formal sentencing, the court’s assessment of sentence immediately after verdict was explicit and explained in detail. The assessment of sentence was “four years in the Missouri Department of Corrections for the crime of burglary in the second degree and four years in the Missouri Department of Corrections on the crime of stealing; said sentences imposed this date to run concurrent with each other. However, said sentences imposed this date to run consecutively with the sentence imposed in the Shannon County case . . . At the time of pronouncement of sentence, the trial court should have pronounced the sentence in the same explicit detail as pronounced at the time of assessment of sentence.

Finding no error, the judgment and sentence is affirmed.

All concur.


author: BILLINGS, Chief Judge.

text:
    Walter Eugene WINBERRY, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 10189.
    Missouri Court of Appeals, Springfield District.
    Oct. 1, 1976.

      L. Dwayne Hackworth, Piedmont, for movant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Before BILLINGS, C. J., and STONE and TITUS, JJ.
   BILLINGS, Chief Judge.

Walter Eugene Winberry filed a Rule 27.26, V.A.M.R., motion to vacate his 15-year prison sentence. The sentence followed his 1972 plea of guilty to the charge of felonious assault with intent to kill with malice aforethought [§ 559.180, RSMo 1969]. His motion alleged the sentence exceeded that authorized by law, he was denied the services of a private psychiatrist at state expense, and his counsel was ineffective for various stated reasons.

The trial court conducted an eviden-tiary hearing and entered findings of fact and conclusions of law adverse to movant’s grounds concerning his attorney and the failure to provide him a private psychiatrist. Because the certified copy of sentence and judgment under which movant was committed to the Department of Corrections omitted the term “with malice aforethought,” the court set aside and vacated the original sentence and after granting movant allocution, re-sentenced him on his original guilty plea. We affirm.

The sentence imposed, initially and upon re-sentence, to the charge and mov-ant’s plea of guilty thereto, is not in excess of the punishment permitted and authorized by § 559.180. Both the original information (charging defendant and others) and the amended information (charging defendant) clearly charged the defendant with felonious assault with intent to kill with malice aforethought. The transcript of movant’s guilty plea demonstrates the mov-ant voluntarily and understandingly entered his guilty plea pursuant to an agreement that the state would recommend a 15-year sentence. The “bargain” was kept and the court imposed the sentence after carefully questioning the movant in detail before accepting his guilty plea.

The trial court found movant had been given a psychiatric examination and the report concluded nothing was wrong with him. The report, prepared by doctors at Fulton State Hospital, was introduced at the evidentiary hearing and clearly supports the lower court’s finding. Movant’s point is without merit.

Movant’s claim of ineffective assistance of counsel was rejected by the trial court and we cannot say this finding was erroneous. At thé hearing movant first stated he wished to withdraw the complaints against the attorney, then equivocated as to whether he was claiming his attorney was ineffective, and then offered several alleged reasons why he deemed his attorney ineffective. The testimony of his attorney and the transcript of his guilty plea refuted movant’s charges.

The judgment entered by the trial court is not clearly erroneous and is affirmed.

All concur.

      . From the record before us it appears the judgment as entered by the clerk erroneously omitted “with malice aforethought.” If such was the case, the trial court was empowered to correct the judgment nunc pro tunc to accurately reflect the judgment which in fact was rendered. McCarthy v. Eidson, 262 S.W.2d 52 (Mo. banc 1953).

      . For reasons not clear, two days after the original sentence and judgment, the trial court offered movant the opportunity to withdraw his plea of guilty. Movant replied: “No, sir, let it stand.”


author: CARNEY, Presiding Judge.

text:
    NATIONAL GARAGE COMPANY, Plaintiff-Appellant, v. GEORGE H. McFADDEN & BRO., INC., Defendant-Appellee.
    Court of Appeals of Tennessee, Western Section.
    May 20, 1975.
    Certiorari Denied by Supreme Court Nov. 3, 1975.

      James T. Allison and Ratner, Sugarmon & Lucas, Memphis, for plaintiff-appellant.
    Newton P. Allen and Armstrong, Allen, Braden, Goodman, McBride & Prewitt, Memphis, for defendant-appellee.
   CARNEY, Presiding Judge.

The Plaintiff below, National Garage Company, a partnership composed of I. E. Hanover, Marvin Ratner and others, has appealed from a judgment of the Circuit Court of Shelby County dismissing Plaintiff’s suit for $31,000 representing rent for one year on the building located at 62 West Court Avenue in Memphis, Tennessee, known as the National Garage Building. Plaintiff claimed that a lease signed by the parties was automatically renewed for one additional year.

The Defendant, George H. McFadden & Bro., Inc., had been a major tenant in the building since the late 1930’s. The parties began negotiating in the fall of 1968 for a new lease on the premises. After a series of discussions which lasted several months, the parties entered into a new lease agreement on June 23, 1969. The lease agreement is some seven pages long and we copy only the pertinent portions herein as follows:

“LEASE
INDENTURE OF LEASE made as of June 23,1969, between THE NATIONAL GARAGE COMPANY, a partnership composed of JACK A. BELZ, JEROME H. HANOVER, I. E. HANOVER, and THE HEIRS OF I. J. RATNER, herein called ‘Landlord’ and GEO. H. McFAD-DEN & BRO., INC., herein called ‘Tenant’, wherein it is agreed:
2. The term of this lease shall be Two (2) Years, beginning August 1, 1969, and ending July 31, 1971.
3. Tenant hereby covenants and agrees to pay to Landlord as rent for the aforesaid premises the sum of SIXTY TWO THOUSAND DOLLARS ($62,000), payable in advance in monthly installments, in amounts, and maturing as follows:
TWO THOUSAND FIVE HUNDRED EIGHTY THREE AND 33/100 DOLLARS ($2,583.33) per month, on the first day of August, 1969, and a like amount on the first day of each successive month throughout the term of this lease.
* * * * * *
18. And on the expiration of the term of this lease to deliver unto Landlord the possession of said building, lot and premises, cleared of all persons, goods and things not properly belonging to the same, and in as good order and condition as the same were received, destruction or damage by fire, storm or other casualty, not the fault of the Tenant or its agents, and ordinary wear and tear excepted.
* * * * * *
24. No renewal of the lease will be binding on either party unless it be in writing and signed by Landlord and Tenant.
* * * * * *
30. It is mutually agreed and understood that in the event Tenant should hold over after the termination of this lease, either by expiration of the term herein stated or otherwise, that such holding over shall not be construed as a holding over from month to month, or year to year, or term of years, or for a periodic term of any kind, but such holding over shall be from day to day and solely at the will of Landlord.
35.- Upon the end of the term of this lease, and thereafter until once terminated, this lease will renew itself from year to year unless either party notifies the other within twelve (12) months prior to expiration of a renewal period.”

The Defendant paid its rent regularly and otherwise complied with the terms and provisions of the lease contract.

By letter dated November 2, 1970, the Defendant tenant George H. McFadden & Bro., Inc. notified a partner of Plaintiff, I. E. Hanover, as follows:

“It is with regret that I have to inform you that we have decided not to renew our lease of June 23,1969 when it expires on July 81, 1971.”

On July 31, 1971, the last day of the two-year period, the Defendant surrendered possession of the premises. The landlord unsuccessfully tried to mitigate his damages by leasing the property to other tenants. On November 28,1972, suit was filed by the Plaintiff landlord against the Defendant tenant for $31,000 contending that paragraph 35 of the lease contract provided for a mandatory extension of the lease contract for a third year.

The case was tried before the Trial Judge without a jury. Mr. I. E. Hanover and Marvin L. Ratner, an attorney of the Memphis Bar, both partners in the National Garage, owners of the building in controversy, testified as witnesses for the Plaintiff. Mr. Erich A. Catmur, Executive Vice President of Valmac Industries, the successor Corporation to George C. McFadden & Bro., Inc., testified for the Defendant. These same witnesses were the parties who had negotiated over a period of several months prior to June 24, 1969, which negotiations resulted in the lease in controversy.

No objection was made to the testimony by the parties of their intentions in drafting various portions of the contract. Mr. Marvin Ratner was a principal draftsman of the document. However, Defendant’s Vice President, Mr. Catmur, and attorney, Mr. Allen, carefully considered every section of the contract before it was executed. Several changes were made before it was finalized.

Mr. Ratner testified that he drafted paragraph 35 partly in answer to a suggestion of Mr. Catmur in a letter of November 1, 1968, addressed to Mr. Hanover concerning an automatic renewal and we copy the suggestion which is a paragraph from the letter as follows:

“We also would like to see the lease drawn where it would be automatically extended for additional periods of one year subject to either party’s right to give each other 12 months prior notice of their intention not to continue.”

In that same letter Mr. Catmur offered to take a two-year lease and we quote from the letter as follows:

“Due to the obsolescence of the National Garage Building compared to modern structures and the attendant lack of comfort and efficiency, we do not feel that any increase in rental is justified; the best we can do, therefore, is to offer to take a two-year lease from August 1, 1969 to July 31, 1971 at a rental of $31,-000 per annum contingent upon the following work being performed: . . ”

His Honor the Trial Judge held that a proper interpretation of the lease was that the parties intended to enter into only a two-year lease and that paragraph 35 does not extend the lease for an additional twelve-month period or for any additional period and the Defendant was therefore entitled to vacate the premises on July 31, 1971, and was not liable to the Plaintiff for any rental payments thereafter.

Assignment of error No. I insists that: “The Court erred in finding that the parties intended to enter into only a two-year lease for it made no finding that the lease was ambiguous, and ambiguity must be found before the intentions of the parties can be ascertained.”

This assignment of error must be overruled for two reasons: (1) If His Honor the Trial Judge did find the contract unambiguous, then it was the duty of the Court to determine the intention of the parties as expressed in the contract regardless of their unexpressed intentions. Petty v. Sloan, 197 Tenn. 630, 277 S.W.2d 355 (1955). Also Bartlett v. Philip-Carey Mfg. Co., 216 Tenn. 323, 392 S.W.2d 325 (1965).

(2) If the Trial Judge found the contract ambiguous, and there is nothing to indicate that he did not find it ambiguous, then it was the duty of His Honor the Trial Judge to determine the intention of the parties not alone from the language of the contract but also from surrounding facts and circumstances. Commerce Street Co., Inc. v. Goodyear Tire & Rubber Co., Inc., 31 Tenn.App. 314, 215 S.W.2d 4, and Pettyjohn v. Brown Boveri Corp., 63 Tenn.App. 546, 476 S.W.2d 268 (1971). So, whether His Honor the Trial Judge found the contract ambiguous or unambiguous, he was required to find the intentions of the parties in order to construe the contract. Assignment of error No. I is overruled.

Assignment of error No. II insists: “The Court erred in holding that the parties were bound to only a two-year lease when the notice given by Defendant was legally insufficient to prevent the lease from going into a third year.”

Mr. Ratner testified that he drafted paragraph 35 of the lease in an effort to make it mandatory that the lease be extended for at least one term regardless of any notice by Defendant during the first two years; that he had instructions from his partner, Mr. Hanover, to obtain as long a lease as possible and as long a notice as possible and for this reason he did not draft paragraph 35 in accordance with the language of Mr. Cat-mur’s suggestion but modified it substantially. Mr. Ratner admitted that he’at no time suggested to Mr. Catmur nor to his attorney that the effect of paragraph 35 was to make the lease contract actually a three-year lease instead of a two-year lease. Thus, Plaintiff’s testimony shows affirmatively that there was no meeting of the minds on paragraph 35.

First, we hold that paragraph 35, within itself, is ambiguous. Mr. Ratner was the draftsman of this section and we construe the contract most strictly against the Plaintiff. Chazen v. Trailmobile, 215 Tenn. 87, 384 S.W.2d 1.

Under paragraph 35 the notice must be given within twelve months prior to the expiration of a renewal period. The expiration of the first renewal period would have been July 31, 1972. The Defendant gave notice of his intention not to renew and to vacate the premises in November, 1970, which was almost two years before the expiration of the first renewal period. Defendant complied with the terms of Section 35 and prevented a renewal by written notice given more than twelve months prior to the expiration of the first renewal period.

For other reasons we concur in the rejection of Plaintiff-Appellant’s contention that Section 35 created a three-year lease instead of a two-year lease by the automatic renewal provision. This section is absolutely repugnant to and contradictory of Section 24 which provides that no renewal shall be effective unless in writing and signed by both parties. We have been unable to suggest a reasonable construction of the two sections so that they will be in harmony. Therefore, the latter section, 35, will be rejected. Bank of Commerce & Trust Co. v. Northwestern National Life Insurance Co., 160 Tenn. 551, 26 S.W.2d 135, 68 A.L.R. 1380; Bartlett v. Philip-Carey Mfg. Co., 216 Tenn. 323, 392 S.W.2d 325 (1965).

We concur in the finding of His Honor the Trial Judge that the parties did not intend a three-year contract and did not intend a contract for more than a two-year period. Assignments of error I and II are respectfully overruled.

Assignment of error No. Ill insists that if Plaintiff was not entitled to full compensation for a full one year, that Plaintiff was at least entitled to compensation for three months and two days or the sum of $7,922.21 because the Defendant’s notice of intention to vacate lacked three months and two days of giving twelve months’ notice. We have held that the lease was not renewed for any length of time under Section 35 both because proper notice was given and because Section 35 must be rejected as being in irreconcilable conflict with Section 24. Therefore, assignment of error No. Ill must also be overruled.

The judgment of the lower Court is affirmed at the cost of the Appellant.

MATHERNE and NEARN, JJ., concur.


text:
    BARRTON SCIENTIFIC, INC., Plaintiff-Appellee, v. Morris MOSS et al., Defendants-Appellants.
    Court of Appeals of Tennessee, Western Section.
    Sept. 23, 1975.
    Certiorari Denied by Supreme Court March 1, 1976.
    Thomas, Halliburton & Ballin, Memphis, for defendants-appellants.
    Henry L. Klein, Donald E. Bourland and Rickey, Shankman, Blanchard, Agee & Harpster, Memphis, for plaintiff-appellee.
   CARNEY, Presiding Judge.

By writ of error, the Defendants, Morris Moss, Mrs. Kathryn S. Adams, Mrs. Christine S. Agee, Mrs. Martha S. Gary, and Mrs. Sarah S. Taylor, have appealed from a judgment for $13,275 of date August 9, 1974, in favor of the Plaintiff Barrton Scientific, Inc. in the Circuit Court of Shelby County. The case was tried on oral testimony and depositions without a jury before the Trial Judge.

This lawsuit hinges upon the construction of Section 12.1 of a contract dated April 7, 1970, involving the sale of a group of blood banks by Central Blood Services, a Maryland Corporation, to IPCO Hospital Supply Corporation, a New York corporation. The total consideration of the sale was $5,310,-000 and Plaintiff’s suit was for the balance of its “finder’s fee” in connection with said contract of purchase and sale.

The corporate stock of Central Blood Services was owned one-half by Richard Dice of Birmingham, Alabama, one-fourth by Defendant Morris Moss of Memphis, Tennessee, and the other one-fourth interest was owned jointly by the Defendants Mrs. Kathryn S. Adams, Mrs. Christine S. Agee, Mrs. Martha S. Gary, and Mrs. Sarah S. Taylor, of Memphis, Tennessee, hereinafter called the Sparr sisters.

Section 12.1 of the contract reads as follows:

“12.1 Finder. Barton Scientific, Inc., of which C. Hilyard Barr, 4910 Viñeta Avenue, LaCanada, California, is president, is the finder in connection with this transaction and is being paid $26,550.00 by IPCO and the balance of any fee by some or all of Sellers. With the exception of the foregoing, Sellers and IPCO each represent and warrant that they have not authorized any person to act as broker or finder in connection with this Agreement or the transactions contemplated hereby and have not agreed to pay any person any fee or other compensation as broker or finder in connection therewith. Sellers and IPCO each jointly and severally agree to indemnify and hold harmless the other from and against any claim, liability or obligation of any nature for any brokerage, finder’s fee, commissions or other like payment (and also any expense incurred in investigating or defending the same, including counsel fees) based in any way on any agreement, arrangement or understanding claimed to have been made by any of Sellers or by IPCO, as the case may be, with any third party, provided however, Sellers are not obligated to pay any portion of the fee agreed to be paid by IPCO as set forth above.”

Upon completion of the sale, the purchaser, IPCO, paid Plaintiff a $26,550 finder’s fee. Richard Dice, owner of one-half of the corporate stock of Central Blood Services paid $13,275. The Defendants Moss and the Sparr sisters refused to pay the remaining $13,275 demanded by Plaintiff. The present lawsuit resulted.

The Trial Judge found, and it is not questioned on appeal, that the original agreement between IPCO, the purchaser, and Plaintiff Barrton Scientific, Inc. was that IPCO would pay Barrton Scientific, Inc. a finder’s fee of one percent of the purchase price or the sum of $53,100. This was an oral agreement made in October, 1969. IPCO Corporation is not a party to this lawsuit.

In March, 1970, while the contract was being drawn, IPCO informed Mr. Hilyard Barr, president of Barrton, that the sellers would pay half the finder’s fee and obtained a written agreement from Barrton to accept one-half of one percent in full settlement of the fee from IPCO.

The complaint charged that all of the Defendant sellers had agreed that they would pay the one-half of the finder’s fee which IPCO was not paying. Extensive testimony was heard by the Trial Judge after which the Court made a finding as follows:

“The Court has very carefully considered all of the proof in this case and is of opinion that the oral testimony is not of sufficient clarity to support a contract for payment of one-half of the finder’s fee by these defendants. As previously indicated at the close of the proof, the Court is of opinion that if there is liability for payment of one-half of the fee by the sellers it will have to be by virtue of the terms of the written contract of purchase entered into by and between IPCO and the sellers on April 7,1970 . . . The Court is of opinion that a determination' of the controversy here involved turns on a construction of simply the first sentence of the above quoted Sec. 12.1, reading as follows:
‘Barrton Scientific, Inc., of which C. Hil-yard Barr, 4910 Viñeta Avenue, LaCana-da, California, is president, is the finder in connection with this transaction and is being paid $26,550.00 by IPCO and the balance of any fee by some or all of Sellers.’ ”

The Court then held that such language made Defendants jointly and severally liable for the balance of the finder’s fee. His Honor the Trial Judge further stated that in his opinion the phrase quoted above was not ambiguous. However, if considered ambiguous, it should be construed against sellers Dice and Moss because they had their attorney insert the language into the contract, citing Associated Press v. WGNS, Inc., 48 Tenn.App. 407, 417, 348 S.W.2d 507.

Though the evidence is in sharp conflict, we concur in the finding of the Trial Judge that the Plaintiff has failed to sustain the burden of proving that the Defendants, Morris Moss and the Sparr sisters, ever agreed to pay any portion of the finder’s fee to the Plaintiff Barrton Scientific, Inc. or to IPCO.

We must respectfully disagree with the learned Trial Judge in his interpretation of the phrase quoted above, to-wit, “ . . . and the balance of any fee by some or all of the sellers.” We hold that under said phrase, the Defendants do not agree to or contract for joint and several liability to the Plaintiff.

The phrase is incomplete on its face but indicates-that there is a collateral agreement between or among some or all of the parties that some additional fee may be payable to Plaintiff from one or more of the sellers. Extraneous evidence is necessary to prove how much the fee was to be and who was to pay it. Since the collateral agreement was not in writing, parol evidence was admissible to prove the collateral agreement. Anderson v. Sharp (1953), 195 Tenn. 274, 259 S.W.2d 521; Fulton v. Tennessee Walking Horse Breeders (1971), 63 Tenn.App. 569, 476 S.W.2d 644.

The preponderance of the parol evidence establishes that the fee to be paid Plaintiff Barrton was $26,550; that Seller Dice agreed to and did pay $13,275 of said fee; that IPCO and Barrton expected the Defendant Sellers Moss and Sparr sisters to pay the remaining one-half or $13,275. However, we find the preponderance of the parol proof is that the Defendants Moss and Sparr sisters before the contract was signed told their attorneys and Seller Dice that they would not pay any finder’s fee and that Seller Dice misled his friends Hilyard Barr and his employee, Jack Barr, into believing that Sellers Moss and Sparr sisters would pay a part of the finder’s fee.

Mr. Jack Barr, one of the owners of Barr-ton Scientific, Inc., was in the employment of Mr. Dice in another Blood Bank Service called Community Blood Bank Service in Birmingham, Alabama. Subsequent to the purchase by IPCO of Central Blood Bank Services, IPCO purchased Community Blood Bank Service also owned by Mr. Dice and no finder’s fee was paid by Dice for the sale of Community. At the time he testified in this case, Mr. Dice was employed by the purchaser, IPCO Hospital Supply, as Director of the Community Blood and Plasma Service in Birmingham, Alabama, a division of IPCO.

Mr. Hilyard Barr, his brother John W. Barr, and James Barrton, the principal owners of Barrton Scientific, Inc., were engaged for many years in the biological manufacturing business. Mr. Hilyard Barr was president of Courtland Laboratories which was later sold to the Abbott Company dealing primarily in derivatives of human blood plasma, also selling containers and other products related to collecting, processing, and storing human blood. The IPCO experience was Barrton’s first venture as a “finder” or broker.

IPCO’s lawyers and Barrton’s lawyers approved the final draft of Section 12.1 of the contract before it was signed. In reliance upon Mr. Dice’s assurance to him that the sellers would pay the other one-half of the finder’s fee, Mr. Hilyard Barr at Barrton Scientific, Inc. made a new agreement with IPCO to cut his finder’s fee in half. We copy said agreement as follows:

“April 3, 1970
Barton Scientific, Inc.
4910 Viñeta Avenue La. Canada, California 91011 Attention: Mr. C. Hilyard Barr, President
Re: Central Blood Service. Inc.
Dear Sirs:
This will acknowledge that your company has been instrumental in arranging an introduction and bringing the parties together whereby Ipco Hospital Supply Corporation proposes to acquire all of the issued and outstanding stock of Central Blood Service, Inc., a Maryland corporation, whose wholly-owned subsidiaries are Central Blood Service, Inc., a North Carolina corporation, and Carolina Blood Bank, Inc., a South Carolina corporation. As full compensation for your services, we agree to pay you and you agree to accept a finder’s fee of Twenty Six Thousand Five Hundred Fifty Dollars ($26,-550.00), being one-half of 1% of $5,310,-000.00, the value of the shares of our Common Stock to be issued in exchange for the stock being acquired. Said fee is subject to and contingent upon the closing of this transaction and shall be paid promptly after the closing.
You have not participated in and are not expected to participate in any of the negotiations, nor are you expected to render any other services in connection with such proposed acquisition.
We shall have no further obligation to you and you shall have no other claim against us for commissions, fees, expenses or of any other nature, with respect to this or any other transaction, except as we may otherwise expressly agree in writing.
Will you kindly confirm your agreement to the foregoing by your signature in the space below.
Very truly yours,
IPCO HOSPITAL SUPPLY CORPORATION
Bv Robert S. Savin_
CONFIRMED AND AGREED TO: BARTON SCIENTIFIC, INC.
Bv C. Hilvard Barr_
C. Hilyard Barr, President
I approve the above and confirm that I have no claim of any nature against IPCO Hospital Supply Corporation with respect to the transaction referred to in the foregoing letter and shall have no claim with respect to any other transaction, except as may otherwise be expressly and mutually agreed in writing.
C. Hilvard Barr_
C. Hilyard Barr”

On or about April 7,1970, representatives of IPCO, Mr. Dice, Mr. Moss and his wife, Mrs. Dale Moss, representatives of the Sparr sisters, appeared in New York and signed the acquisition agreement. The next day, April 8, 1970, Mr. Dice gave a check for $13,275 to Mr. Barr representing the part of the fee which he had agreed to pay. No demand was made on Moss or the Sparr sisters for any part of the finder’s fee until several months after closing.

The preponderance of the evidence in this case is that at no time was the seller, Richard E. Dice, given authority to obligate the Defendant Morris Moss nor the Defendant Sparr sisters for payment of a finder’s fee. The preponderance of the evidence is that the Defendant Morris Moss and the Sparr sisters have at all times refused to pay and have never agreed to pay a finder’s fee. Dice admitted that he withheld information from Hilyard Barr that Moss and the Sparr sisters were refusing to pay any part of the finder’s fee.

We hold that under Section 12.1 of the contract and the evidence introduced to explain said Section only the seller Mr. Dice agreed to pay a fee to Plaintiff and Defendants Moss and Sparr sisters are not liable for any part of said fee. Assignment of error No. I is sustained.

Defendants-Appellants also insist the Trial Judge erred in denying their Motion to Amend their Answer to plead the New York Statute of Frauds. The statute of frauds, Tennessee or New York, had not been previously pleaded. Section 12.11 of the contract provided that the agreement would be governed by and construed in accordance with the laws of the State of New York.

Defendants cite and rely upon T.C.P. Rule 15.01 which states that leave to amend should be freely given when justice so requires. The Motion was filed after the proof was concluded and the case had been taken under advisement. As mentioned by the Trial Judge there had been no compliance with T.C.P. Rule 8.03 which requires defenses such as statute of frauds to be set forth affirmatively in short and plain terms nor had Defendants given reasonable notice as required by T.C.A. Section 24-610 that they intended to prove the law of New York or ask the Trial Judge to take judicial notice thereof. The Trial Judge correctly held that the Motion to Amend came too late. We have read the recent case of Branch et al. v. Warren et al. 1975, Tenn., 527 S.W.2d 89, construing T.C.P. Rule 15.01 but hold that the facts in this case do not bring the case within the opinion of Justice Henry in Branch et al. v. Warren et al., supra. Assignment of error No. II is overruled.

Judgment will be entered reversing the lower Court, dismissing the Plaintiff’s suit and taxing the Plaintiff with the costs in the Court below and in this Court.

MATHERNE and PURYEAR, JJ., concur.


author: WALKER, Presiding Judge.

text:
    Paul Edward LEE, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    March 23, 1976.
    Certiorari Denied by Supreme Court June 1, 1976.

      Hughie Ragan, Jackson, for plain tiff-in-error.
    R. A. Ashley, Jr., Atty. Gen., Robert H. Roberts, Advocate Gen., Nashville, James G. Woodall, Asst. Dist. Atty. Gen., Jackson, for defendant-in-error.
   OPINION

WALKER, Presiding Judge.

On his trial for assault and battery with intent to have carnal knowledge of Roberta Lynn Clark, the jury found the defendant below, Paul Edward Lee, guilty of an attempt to commit a felony and fixed his punishment at a minimum of one year and a maximum of five years in the penitentiary. He appeals in error.

Roberta Lynn (Lee) Clark, also known as Robbie, is the stepdaughter of the defendant. She was 16 at the time of the trial (May 14, 1975) and was 14 at the time of this incident, April 15, 1973. The indictment was returned October 31, 1974.

Robbie Clark testified that the defendant began molesting her when she was 13 years old and that this occurred two or three times a week over a period of three years. Her mother worked and these incidents took place at the motel the defendant operated. The defendant would take off his clothes and require her to remove her clothes, too; he would get on top of her and go up and down on her, fondling her and reaching an orgasm. There is no claim of penetration. On occasions he would have her stand naked in front of a mirror. The specific incident claimed is April 15, 1973, but she says she did not tell her mother until July because she feared the defendant would harm her.

The defendant was arrested in May 1974. Robbie says he called her at a foster home and promised to give her a sports car if she changed her story. From the jail he sent her a lengthy poem asking forgiveness for his acts.

July 15, 1973 Robbie’s maternal grandfather found the defendant, clad in undershorts, in bed with Robbie, clothed only in brief night wear. When the grandfather objected, the defendant became angry and told him that as long as he fed the children and sent them to school he had the right to get in bed with any of them.

Evelyn Lee (Robbie’s mother and wife of the defendant) testified that she had seen no improper conduct between the parties but that Robbie had told her of the defendant’s sexual misconduct.

The defendant introduced witnesses, including the former district attorney general, who testified that Robbie had told them that her accusations about the defendant were false.

Testifying in his own behalf, the defendant denied any misconduct with Robbie. He said that Robbie and the other children helped in the motel but that he had not abused her in any way. In explanation of the poem he wrote from jail, he said that he was depressed and embarrassed by being in jail for the first time and felt that he had disgraced the family for that reason but he was not apologizing for anything else. He said he had promised Robbie a sports car when she was 16 and in his telephone conversation he only told her to tell the truth when he reminded her of his promise.

In challenging the sufficiency of the evidence, the defendant says the girl was not corroborated. The defendant’s poems corroborate her testimony. This evidence meets the rules on corroboration in Scola v. State, Tenn.Cr.App., 474 S.W.2d 144.

The defendant says the verdict of the jury was uncertain both as to the crime and the punishment.

He argues that the verdict of an attempt to commit a felony was improper because it failed to specify what felony was involved. The indictment charged the defendant with violating TCA 39-605, assault and battery with intent to commit rape. It was not necessary for the jury to specify the felony attempted to be committed. Clark v. State, 214 Tenn. 555, 381 S.W.2d 898.

The jury accepted the state’s theory of the case and the evidence does not preponderate against its verdict.

The defendant says the verdict of one to five years’ imprisonment was improper because at that time the jury had no authority to fix a minimum sentence. Since the jury fixed the minimum of one year, there was no prejudice to him.

The defendant urges that TCA 39-605 is unconstitutional for sex discrimination because it protects only females. The laws of this state do protect males from sexual assault and abuse. We hold that this statute is constitutional and does not violate the constitutional rights of the defendant.

In challenging the admissibility of the poems, the defendant contends that these were privileged communications between husband and wife. Although he gave the poems to his wife at the jail, one was addressed, “To the Family I Once Had,” and the other was, “To Robbie (only).” These were not privileged communications between husband and wife and were admissible. Burton v. State, Tenn.Cr. App., 501 S.W.2d 814.

By plea in abatement the defendant attacks the appointment and selection of the jury commissioners in Madison County and the operation of the jury law in the selection of the jury. He contends the jury was unconstitutionally and otherwise improperly chosen. We have examined all of these contentions and find them to be without merit.

The defendant complains of the trial judge’s denial of his special requests on corroboration and sufficiency of the evidence. The court adequately instructed the jury on these matters and did not err in denying the requests.

All assignments are overruled and the judgment is affirmed.

RUSSELL and DUNCAN, JJ., concur.