*1 ordinarily followed by Parkhill drivers.
Further, 1-35, to turn south on or Gary Missouri, Plaintiff-Respondent, STATE of Expressway, Street, from southeast 29th going (as Begey driver west would have going) been must travel over the interstate WILLIAMS, Gary Gene sharply and then turn left to enter the Defendant-Appellant. lane
southbound or lanes of expressway. No. 36168. The record indicates there “one sign” indicating the exit from southeast Appeals, Missouri Court of 35; 29th onto southbound there is also 1— District, St. Louis evidence raining Begey when Division Three. addition, left the terminal. the road maps parties introduced demonstrate Jan. 1977. quite clearly that the “downtown area” of Motion for Rehearing or Transfer City, Begey’s Oklahoma where death oc- Denied Feb. curred, is a literal maze of interstate clover- overpasses leaves and driver Application to Transfer Denied might temporarily become disoriented if he 14, 1977. March driving in the rain at 3:30 a. m. The Begey’s fact accident occurred some
distance from the intersection where he permits,
should have turned south but cer-
tainly require, not does inference that
he had deviated from his normal route.
Finally we must bear in mind the
following facts and circumstances: Begey
had been dispatched to Savanna and was
free to leave earlier m., than 5:00 a.
departure time called paid for. Parkhill
nothing miles; for “bobtail” if Begey
picked up no loaded Savanna, trailer at he obliged to absorb the cost of traveling
“bobtail” or “bobtail and deadhead” from
the total received for the use of his equip Begey
ment. had a financial interest
picking up a loaded trailer at Savanna. It consequence
is of no trip whole
may incidentally have purpose served some own, Begey’s
of his if trip also served his
employer’s purpose, and it was not neces
sary that the interest of the employer be
the dominant cause of the trip. Hammack
Nicholson, supra,
conclude, Commission, did the that con
flicting inferences can be drawn from the
evidence; we are therefore concluded by inferences,
their resolution of the Bradshaw Trucks, Inc.,
v. Richardson supra, 467
S.W.2d at and accordingly the award of
compensation is affirmed.
All concur. *2 Louis, Baldwin, for de-
Springfield St. fendant-appellant. Danforth, Gen., Atty. C. Preston
John Gen., Dean, Arnet, Attys. F. Asst. William Ryan, City, Brendan Circuit Jefferson Jr., Roche, A. Asst. Circuit James Atty., Louis, plaintiff-respondent. for Atty., St. GUNN, Judge. guilty possessing found
phenmetrazine, Schedule II substance, in violation of 195.020 RSMo. § stipulated to least one Having 1969.1 at conviction, prior felony the defendant was years imprisonment; to he sentenced five appeals. law, except drug, 195.020 as authorized
1. Section
RSMo. 1969 reads:
narcotic
any apparatus,
possess
device or instru-
any person manufac-
“It is unlawful for
use of narcotic
control, sell,
unauthorized
ture,
pre-
ment for the
possess, have
drugs.”
scribe, administer,
dispense,
compound
defendant,
driving
while
agree
automo-
We
the State must
passengers,
bile with two
stopped by prove
that the defendant “was aware of the
Louis Police Officers Kruz
St.
and character
Stewart
substance,
for a traffic violation.
ap-
intentionally
Officer Kruz
and was
and con
proached
sciously
the driver’s
(original
side of the
of it”
car
em
Polk,
spoke
Stewart,
phasis)
defendant. Officer
look-
*3
Burns,
ing
(Mo.App.1975). See also
passen-
in the auto from the front seat
State v.
457
Roberts,
side,
721
ger
S.W.2d
State v.
524
hypodermic syringes
noticed two
174
Berry,
S.W.2d
State v.
in
view on the floor of the car. De-
(Mo.App.1972). And,
488
667
S.W.2d
in
fendant and
passengers
the two
deed,
jury
properly
instructed that
placed under arrest and searched. Officer
the defendant guilty,
to find
it was neces
Kruz, searching defendant’s front trousers
sary
“willfully,
to find that he did
unlaw
pocket, found a vial containing
drops
a few
fully
feloniously” possess phenmetra-
and
liquid
glass
of a clear
and a brown
bottle.
issue, then,
zine. The
for this case is
laboratory
Police
tests disclosed that
whether the information which charged the
phenmetrazine.
clear vial contained
pos
defendant with unlawful and felonious
Defendant first contends that the infor-
session of the controlled substance is suffi
charging
mation
him
violating
with
195.-
§
cient without the
of the
inclusion
words
020 was
in
defective
that it
failed to
“knowingly”
“wilfully.”
We hold that it
possession
him with
of a narcotic with
and find that
ample precedent
there is
knowledge of
and character of
holding.3
for our
substance;
that,
therefore,
Davis,
In
v.
the information
did not
all of the
(Mo.App.1974),
against
the information
de
essential elements of the
charged
offense
charged
that he “did then and
required by Rule 24.01.2
unlawfully
feloniously
and
have in his
pertinent portion
of the infor
possession
quantity
marijuana
mation under attack reads:
(emphasis added).
uphold
. .”
WILLIAMS,
“That GARY GENE
at the
information,
ing
sufficiency
Louis,
City
Missouri,
of St.
State of
on was held “that all substantive elements of
day April
18th
unlawfully
did
felony
charged
offense were
in the in
feloniously
and
possession
have in his
Id.,
formation.”
at 792. In
Wor
State v.
PHENMETRAZINE, a Schedule II Con-
ley,
(Mo.1964),
an infor
substance; contrary
trolled
to the form
charging
mation
the defendant with “un
of the Statute in such case made and
possession
marijuana
lawful
or control” of
(sic),
proviced
against
and
peace
and in violation of 195.020was held sufficient.
§
dignity of the State.”
Virdure,
The defendant
in State v.
argues
charged
while he is
(Mo.1963),
urged
infor
with “unlawfully
feloniously”
and
possess-
charging
mation
him with “unlawfully and
ing phenmetrazine, the information should feloniously” having a controlled substance
provided
knowingly,
that he
unlawful-
possession
in his
or under his control was
ly
feloniously
and
possession
was in
duplicitous
and did not sufficiently apprise
controlled substance.
While this
is him the
alleged
crime
which he was
with
raised for the first
appeal,
time on
we must
rejected
to have committed. The court
de
review
sufficiency
of the information
fendant’s contention and found the infor
Meiers,
under Rule 28.02. Meiers,
mation sufficient. See also
(Mo.1967).
supra, approving
holding
and
sufficient an
requires
2. Rule 24.01
that: “The indictment or
being
3. The issue of defendant’s
conscious of
plain,
the information shall be a
concise and
possession
phenmetrazine
has not been
definite written statement of the essential facts
raised and is not before us.
constituting
charged.”
the offense
See also
Brooks,
(Mo. 1974).
We
points on
raises additional
“unlawfully” have found
The defendant
“feloniously” and
ap
preserved
which is
for
appeal,
wil
none of
to connote intentional and
words
these
.
we find that
Weir,
review. Nor do
pellate
In State
ful acts
is
alleged points
of error
(Mo.1974),the court held that
use
review
27.20(c),
and defendant’s
required
the statuto
Rule
“feloniously”
surrogate for
—as
unavailing.
cause,”
plain
on
error
the intent
reliance
language: “with
ry
Gibson, 540
(Mo.App.1976);
S.W.2d 952
clear that defendant’s conviction record was
Richards,
(Mo.App.
and that he
fulsome
was a confirmed recidi-
Johnson,
1976);
prosecutor’s
do not find the
vist. We
com-
(Mo.App.1976).
be
ment to
error.5
alleges
the chain
Finally, defendant asserts that he
custody
of the clear vial was broken and
is unable to have a full and fair review of
the quantity
phenmetrazine
was an
appeal
due to the destruction or loss of
immeasurable trace and insufficient to raise
exhibits. As
State’s
we are not review
knowing possession.
the inference of
Nei
ing
the merits of
points
defendant’s
ther contention was
contained
defend
appeal
to which such exhibits would be
trial; hence,
ant’s motion for new
neither is
relevant, we need not
discuss
decide this
preserved.
v. Flynn,
point.6
Belleville,
judgment
is affirmed.
(Mo.App.1975).4
argues
Defendant next
KELLY,
J.,
SIMEONE, J.,
P.
concur.
was no admissible
prove
evidence to
KELLY, Presiding Judge, concurring.
phenmetrazine was a controlled II sub
stance. This
only
was raised
in de
here,
While I concur in the result reached
judgment
fendant’s motion for
acquittal
I do so
because I feel constrained to do
*5
at the close of the State’s case. The de
by
so
the
appellate
case law of the
courts of
presented
then
evidence on his own
this
precedent
State
have set
the
behalf and therefore waived error with re
by
opinion
the
followed
herein. State v.
spect
to the overruling of the motion. Connor,
592,
(1927);
318 Mo.
538 tion”, prove . . it is the State the defendant that “. means all knowingly or indictment intentionally in an information “did to be crime intended possession prescribed the elements sub if (and) such elements charged, . . . prove it stance. It not sufficient supplied in- missing they cannot be are possession, or constructive actual implication.” (Emphasis sup tendment the test is whether defendant was Cantrell, 647 403 S.W.2d plied.) State presence and of the character aware Brooks, supra, (Mo.1966); State substance, intentionally and was Osborn, 376; l. c. State v. consciously possession of it.” State (Mo.App.1975). To test suffi Polk, 492 (Mo.App.1975) we ciency indictment of an see also (emphasis original); State v. alleges it all whether must determine Burns, (Mo.1970); State v. ingredients of the offense elements or Roberts, clearly apprising both the defend charged, Berry, (Mo.App. 488 S.W.2d constituting the court of facts ant and Annot., (1963). 1972); 91 A.L.R.2d a conviction or and whether the offense Supreme stated in As Court our would bar sub acquittal of Burns, supra, l. c. 724: “Possession without for the offense. sequent prosecution same posses knowledge of such is not Bott, (Mo.App. S.W.2d 726 legal sense of word”. sion in 1974). defining statute Where the of the elements knowledge posses- crime contains all By decision judicial offense, is sufficient that the indictment controlled substance is essential sion of a allege the offense offense; I, therefore, or information be- ingredient of Kesterson, the statute. terms of supra the authorities lieve that knowledge is an essential element 401, 403 Cunningham, 380 S.W.2d charged in the in- which should be offense however, 1964). Where, re alleging of- or indictment formation mind, g. e. certain state quires a fense; information fails to *6 since this knowledge, it that the indict is essential or allegation Gary Wil- Gene include an state of ment or information here, liams, possessed mind, knowledge necessary con substance with knowl- controlled proscribed crime therein defined. State stitute the thereof, edge and character Harris, 313 S.W.2d 670[7] would, by precedents, I not bound I Thomas, fatally It is hold deficient. 1961).1 principle This where stat —that to hold otherwise is con- my belief particular intention essential to a ute makes pleadings which neither tinue toleration of charge applies to cases where an offense — mandate comply with the constitutional of mind re contains no state I, 18(a) Article Sec. contained intention quirement requirement nor with the Constitution judicial law decisions. required by common Rule 24.01. Harris, supra, l. c. 669. believe, are, applicable I principles These case, 195.020 makes because Section
to this substance a possession of a not re Although statute does
crime. ele particular state mind
quire offense, of this State the courts
ment of a submissi- in order to make held that statute it is under the
ble case Thomas, supra, (“knowingly case); Harris, (feloniously and fraud- willingly” liquor transporting not satisfied ulently an intent to not sufficient held feloniously.”) goods “unlawfully receiving by charging buying stolen in a defraud