State v. Graham, 7739

CourtCourt of Appeal of Missouri (US)
Citation322 S.W.2d 188
Docket NumberNo. 7739,7739
PartiesSTATE of Missouri, Plaintiff-Respondent, v. George A. GRAHAM, Defendant-Appellant.
Decision Date13 February 1959

Claude T. Wood, Richland, Ronald J. Fuller, Rolla, for defendant-appellant.

Jay V. White, Rolla, for plaintiff-respondent.

RUARK, Judge.

Defendant was convicted of driving an auto transport (loaded with four Chevrolets) upon the highway at a speed in excess of 50 miles per hour.

The information charged that defendant did 'wilfully and unlawfully operate a motor vehicle as a motor carrier under certificate or permit number T4430X, assigned to him by the Missouri Public Service Commission, upon a public highway of this State, to-wit, U. S. Highway 66, at a rate of speed in excess of 50 miles per hour, to-wit, 65 miles per hour, contrary to the form of the Public Service Commission Rule No. 44 and the Statutes in such cases made and provided * * *.'

The evidence clearly showed that certificate number T4430X was issued to 'Complete Auto Transit,' which was licensed as a contract carrier. Defendant held no certificate but was an employee-driver of 'Complete Auto Transit.'

One of defendant's assignments is that the prohibition of speed in excess of 50 miles per hour is applicable only to common carriers and not to contract carriers. The contention is based upon Rule 1(c) of the commission, which provides that the term 'motor carrier' as defined in all outstanding certificates of convenience and necessity issued 'prior to the effective date of this General Order shall henceforth be deemed to mean 'common carrier' as defined in Chapter 390, 1951 Supplement to RSMo 1949 [V.A.M.S.].' Subsection (d) of the same section provides that the term 'contract hauler' as used in all outstanding permits shall be deemed to mean 'contract carrier' as defined in said 1951 Supplement.

By Section 390.020 RSMo 1949, V.A.M.S. (Laws of 1951, p. 549), (5) the term 'common carrier' is defined as a person holding himself out to the general public to engage in general transportation of passengers or property; (6) the term 'contract carrier' means any person who engages in transportation under individual contracts; but (8) the term 'motor carrier' includes both common carriers and contract carriers 'as herein defined.'

By Section 390.131, V.A.M.S. (Section 390.160, Laws of 1951, p. 557), the legislature authorized the Public Service Commission to promulgate safety rules which, in addition to any others deemed necessary by the commission, shall include (5) no motor carrier shall operate a vehicle, under his certificate or permit, upon the highways of the State of Missouri at a rate of speed in excess of 50 miles per hour. By Rule 44 the commission provided that no motor carrier shall operate a vehicle under his certificate upon the highways at a rate of speed in excess of 50 miles per hour.

The rule was promulgated under the mandate of the statute. This mandate required, 'shall include,' a limitation upon the speed of motor carriers. The statutes plainly defined motor carriers as including both common carriers and contract carriers. Any attempt by the Public Service Commission to limit or eliminate this plain definition would have been invalid. 1

But the definition of a contract carrier as given in the commission's 1(d) does not by its terms exclude it from the general classification of 'motor carrier' as defined by the statute. It makes the terms 'contract hauler' and 'contract carrier,' as applied to outstanding certificates, synonymous. Nor does 1(c) exclude contract carriers. It deems a motor carrier as a common carrier, 'as defined in Chapter 390 * * *.' The definitions in the Public Service Commission rules were obviously made in order to stabilize previously issued authorities.

Other assignments of appellant can be grouped under the contention that the defendant, not being a motor carrier himself but only an employee of the carrier, could not be convicted of the misdemeanor; that the prohibition extends only to the certificate holder and authorizes a prosecution against (only) the carrier itself; but, and in addition, if the statute does permit the prosecution of the employee, nevertheless he has been charged under one statute and convicted under another.

As to the first contention, i. e., that the prohibition extends only to the certificate holder, the answer is that Section 390.171, V.A.M.S. (Section 390.175, Laws of 1951, p. 559) provides that every owner, officer, agent or employee of any motor carrier, or every other person, who violates or fails to comply with any order, decision, rule, direction, demand or regulation thereof, or who procures, aids or abets in such violation, shall be guilty of a misdemeanor. Under the evidence the defendant was a person specifically designated and prohibited from procuring, aiding or abetting in the violation, to-wit, driving the motor transport in excess of 50 miles per hour.

The second contention, which amounts to the assertion that defendant was charged with one thing and convicted of another, is based on the theory that the charge laid in the information was necessarily made under Section 390.176, V.A.M.S. (Laws of 1951, p. 560), entitled 'Penalties--what deemed separate offense--how construed,' which provides that 'any person operating as a motor carrier' who violates or fails to comply with any provision of the constitution or any law, or who fails or omits to comply with any order, decision, rule or requirement of the commission, is subject to a penalty of not less than $100 nor more than $1,000 for each offense. Paragraph 3 of such section makes the act of the employee the act of the motor carrier. 2

Even if we assume that Section 390.176 creates a crime instead of a civil penalty liability, nevertheless the things prohibited by such section are also included in and encompassed by Section 390.171, which applies to every person and is not limited to the certificate holder only. If the act of the defendant made his employer liable under Section 390.176, then he became a person who 'procures, aids or abets' in the violation under Section 390.171. Agents, accessories, aiders, and abetters are liable as principals and may be charged as such. 3

"It is a general rule of criminal procedure that if one is indicted under one section of a statute, and the evidence shows that he is not guilty of a violation of that section, but is guilty of the violation of another section, he may be convicted of a violation under the section of which the evidence shows him guilty, provided the indictment is broad enough to include the offense within its allegation.' State v. Quinn 94 Mo.App. 59, 67 S.W. 974.' State v. Hamill, 127 Mo.App. 661, 106 S.W. 1103.

"To test the question whether an indictment for one offense includes another, it has been said that where the offenses are of the same general character, the indictment for the one offense must contain all the essential elements of the other, otherwise the prosecution for the latter cannot be maintained." State v. Moon, 221 Mo.App. 592, 283 S.W. 468, 470.

The fact that the information contained the statement that the certificate was issued 'to him' was unnecessary to complete the charge under Section 390.171. It was not an 'essential ingredient' of the act which made the crime. 4 Words which add nothing to the statement of the charge are simply surplusage and are to be disregarded so long as they do not mislead the defendant, 5 especially after a verdict responsive to the charge when not properly attacked before verdict. 6 The gravamen of the offense is that the person charged drove, or procured, aided, and abetted in the driving of, a vehicle of the character involved upon the highway at a speed in excess of 50 miles per hour. It made no difference who held the certificate, and the allegation that it was issued 'to him' is simply surplusage.

Error is assigned 'in the admission in evidence over the objection of the appellant of state's Exhibit No. 1, Rule 33-C of the Public Service Commission, for the reason that said rule was not pleaded in the information.'

State's Exhibit 1 does not appear in the transcript, nor is it produced in accordance with stipulation. An appellate court cannot ordinarily pass upon the competency of documentary evidence which is neither set forth in the transcript nor produced. 7

The offer was '* * * the rules and regulations of the Public Service Commission relating to contract carriers and truck haulers,' 'the entire pamphlet,' 'I offer into evidence this pamphlet marked S-I, and more particularly on page 74, what's marked 'Rule 44, Speed Limits, subparagraph (a), Rates of Speed.'' We can surmise from the language that 'Rule 44' was contained in the exhibit offered. The information charged that defendant operated a motor vehicle as a motor carrier, under Public Service Commission certificate, in excess of 50 miles per hour, contrary to the form of Public Service Commission Rule 44.

The objection here made could not in any event be sustained, because it first appears on appeal. The only objections made to the offer of such evidence in the trial court were that (a) it was not the best evidence and (b) the exhibit was not certified. But these objections have now been abandoned. The objection here made was not made at the trial. A litigant will not be permitted to ambush the trial court by making one objection at trial and then, on appeal, asserting an entirely different objection as a reason for holding the court to be in error. 8

Defendant's objection is really an indirect attack upon the information. His only cited authority on this point, Anderson v. Kraft, Mo.App., 129 S.W.2d 85, 90, holds that reasonable rules of the Public Service Commission have the force and effect of statutes and must 'be pleaded in such a manner as to apprise the opposite party of the...

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