State v. PalmerState v. Palmer
- Reporters:
- ,
- Before:
- Somerville
Defendant was charged by information with stealing, a class C felony.
Defendant has not challenged the sufficiency of the evidence. A brief reference to certain conspicuous facts graphically demonstrates that the guilty verdict returned by the jury was supported by substantial evidence. At approximately 1:00 P.M., June 18, 1979, the victim, an eighty-nine year old female, and a vintage female friend, were entering a Safeway Store in Kansas City, Missouri. The victim was carrying a shoulder purse containing $600.00 in currency which defendant wrested from her and then fled on foot to a waiting car by which he made his escape. Defendant was subsequently apprehended and identified at trial as the perpetrator of the offense.
Defendant relies on two points on appeal: (1) the information failed to allege that defendant appropriated the victim’s purse “without her consent”, thereby rendering it fatally defective and depriving the trial court of jurisdiction to render judgment and impose sentence; and (2) the trial court erred in failing to instruct the jury that they had the option of assessing a fine in lieu of, or in addition to, a term of imprisonment.
Defendant’s first point requires close scrutiny of the following portion of the information on which he stood trial: “[Defendant] appropriated a ladie’s [sic] purse ... by physically taking it from the person of [the victim] ..., which said property was owned by [the victim] ... and with the purpose to deprive her thereof.” Section 570.030.1, RSMo 1978, reads as follows: “A person commits the crime of stealing if he appropriates property or services of another with the purpose to deprive him thereof, either without his consent or by means of deceit or coercion.” (Emphasis added.) It is patent that
The statutory precursors of Section 570.-030, RSMo 1978, are
The present argument asserted by defendant was persistently raised and consistently rejected in a line of cases during the life of
The long standing rule for testing the sufficiency of an information is whether or not it states the essential elements of the offense charged so that an accused is adequately apprised of the charge against him and final disposition of the charge will constitute a bar to further prosecution for the same offense. State v. Stringer, 357 Mo. 978, 211 S.W.2d 925, 929 (1948); State v. Tandy, 401 S.W.2d 409, 412-13 (Mo.1966); Hodges v. State, 462 S.W.2d 786, 789 (Mo.1971); State v. Downs, 593 S.W.2d 535, 540 (Mo.1980); and State v. Barkwell, 590 S.W.2d 93, 99 (Mo.App.1979).
In State v. Zammar, 305 S.W.2d 441, 445-46 (Mo.1957), it was held that an indictment which admittedly did not charge “in express terms that the act of stealing was committed either without the owner’s consent or by means of deceit”, but which did charge that the accused “[did] steal, take and carry away [property]”, obviously described a stealing without the consent of the owner, and was immune from attack on grounds that it was fatally defective.
An information omitting the phrase “without consent” was extensively examined in State v. Puckett, 607 S.W.2d 774 (Mo.App.1980). The information was filed under
In Emmons v. State, 621 S.W.2d 329 (Mo.App.1981), movant appealed from an order of the trial court denying him relief in a Rule 27.26 proceeding. One of the grounds relied on was that an information charging him with stealing (
The triumvirate of State v. Zammar, supra, State v. Puckett, supra, and Emmons v. State, supra, raises and supports several conclusions which may be relied on for guidance in disposing of defendant’s claim that the information sub judice was fatally defective. First, an information charging stealing is not per se fatally defective because it fails to allege that the offense was committed “without consent of the owner”. Second, the absence of any language in an information charging stealing with overtones of “deceit” or “coercion”, coupled with the absence of any contention by an accused that he was unable to comprehend the nature of the charge with respect to the means by which it was purportedly committed, are viable considerations in determining the sufficiency of an information for stealing under attack that it was “fatally” defective.
Upon reexamination, the pertinent segment of the controversial information at hand discloses it charged that defendant “appropriated a ladie’s [sic] purse ... by physically taking it from the person of [the victim] ..., which said property was owned by [the victim] ..., and defendant appropriated such property from [the victim] .. . and with the purpose to deprive her thereof.” (Emphasis added.) It is free of any language with overtones of “deceit” or “coercion”, and defendant, neither below nor on appeal, complained that he was unable to comprehend the nature of the charge of stealing with respect to the means by which it was committed.2 The fact that defendant was charged with physically taking the victim’s purse with the purpose of depriving her of it is reasonably susceptible of but one interpretation, i.e., that it was taken without the victim’s consent. Any other interpretation would be unreasonable, semantically abortive, and exalt hyper-technicality over hard reality. Moreover, the information at hand is clearly distinguishible in content and evidentiary support from that in State v. Newhart, supra, and not within the purview of relief afforded therein.
Defendant also argues that failure of the information to mirror MACH-CR 24.02.1 [Stealing: Without Consent—One Transaction], ipso facto rendered it “fatally” defective. This argument seeks to obliterate the indelible fact that use of pattern charges contained in MACH-CR is recommended rather than mandatory. MACH-CR 1.00 [Supplemental Notes on Use]; and State v. Mitchell, 611 S.W.2d 223, 225 (Mo. banc 1981). Although deviations from MACH-CR are not to be treated lightly or condoned, the instant information cannot be said to have been so flagrantly amiss that it was fatally flawed and afforded no basis for the acquisition of jurisdiction.
Defendant’s second and final point— that the trial court erred in not instructing the jury that they had the option of assessing a fine in lieu of, or in addition to, a term of imprisonment—affords no basis for appellate relief. Identical points were raised and rejected in State v. Koetting, 616 S.W.2d 822 (Mo. banc 1981); State v. Van Horn, 625 S.W.2d 874 (Mo.1981); and State v. Moland, 626 S.W.2d 368 (Mo.1982).
Judgment affirmed.
All concur.
Notes
. Although “without consent” is not defined in Ch. 570, RSMo 1978, “deceit” and “coercion” as used in
“(4) ‘Coercion ’ means a threat, however communicated:
(a) To commit any crime; or
(b) To inflict physical injury in the future on the person threatened or another; or
(c) To accuse any person of any crime; or
(d) To expose any person to hatred, contempt or ridicule; or
(e) To harm the credit or business repute of any person; or
(f) To take or withhold action as a public servant, or to cause a public servant to take or withhold action; or
(g) To inflict any other harm which would not benefit the actor. A threat of accusation, lawsuit or other invocation of official action is not coercion if the property sought to be obtained by virtue of such threat was honestly claimed as restitution or indemnification for harm done in the circumstances to which the accusation, exposure, lawsuit or other official action relates, or as compensation for property or lawful service. The defendant shall have the burden of injecting the issue of justification as to any threat;
“(7) ‘Deceit ’ means purposely making a representation which is false and which the actor does not believe to be true and upon which the victim relies, as to a matter of fact, law, value, intention or other state of mind. The term ‘deceit’ does not, however, include falsity as to matters having no pecuniary significance, or puffing by statements unlikely to deceive ordinary persons in the group addressed. Deception as to the actor‘s intention to perform a promise shall not be inferred from the fact alone that he did not subsequently perform the promise;”
. Lack of such a complaint by defendant is understandable under the statutory definitions of “deceit” and “coercion” (Section 570.010(4), (7), RSMo 1978) and juxtaposed with both the information and the evidence relied on by the state.