State ex rel. Martin v. Berrey

• Decision Date: 05 December 1977
• Docket Number: No. KCD,KCD
• Citation: 560 S.W.2d 54
• Parties: STATE of Missouri ex rel. Ralph MARTIN, Relator, v. Honorable Robert W. BERREY, III, Respondent. 29641.
• Court: Missouri Court of Appeals

Page 54

560 S.W.2d 54

STATE of Missouri ex rel. Ralph MARTIN, Relator, v. Honorable Robert W. BERREY, III, Respondent.

No. KCD 29641.

Missouri Court of Appeals, Kansas City District.

Dec. 5, 1977.

Motion for Rehearing and/or Transfer Denied Dec. 27, 1977.

Ralph L. Martin, Pros. Atty. for Jackson County, by Robert Frager, Asst. Pros. Atty. for Jackson County, Kansas City, for relator.

Albert Copaken, Sylvia Copaken, Kansas City, for respondent.

Before SWOFFORD, C. J., and SHANGLER, PRITCHARD, DIXON, WASSERSTROM, SOMERVILLE and TURNAGE, JJ.

SHANGLER, Judge.

This proceeding in prohibition seeks to restrain the magistrate from dismissal of an information which charges the defendant with fraudulent use of a credit card for value over $100 in violation of § 561.415, RSMo 1969. The magistrate construed the statute to charge a misdemeanor and determined that dismissal by the State of an earlier proceeding against the defendant under the statute had already put him once in jeopardy for that charge, so that the defendant was not again subject to lawful prosecution for that offense. The magistrate announced intention to dismiss the subsequent information on that charge which pended before him, and on the application of the State our preliminary rule issued to enjoin that threatened action.

The premise of the magistrate that § 561.415 charges a misdemeanor is valid, but the further premise that the first proceeding brought against the defendant under § 561.415, and then dismissed, placed the defendant in jeopardy, is fallacious.

The procedures which brought the magistrate to his decision to dismiss are simply these: A complaint on the oath of officer Cleeton was filed and eventually lodged before Magistrate Davis in Jackson County. After the witnesses were sworn in, Magistrate Davis informed the prosecutor of his view that the complaint pleaded a misdemeanor and that he intended to try the case as an offense of that grade. The prosecutor, on the other hand, considered that the fraudulent use of credit card for goods in excess of $100 charged a felony under § 561.415, and so withdrew the complaint.

Another proceeding was then filed before Magistrate Berrey our respondent on an identical General Complaint form with the same substantive statutory allegation of offense against the defendant, but this time on the oath of one Carl Bussey, an assistant prosecutor. Magistrate Berrey made the determination that the defendant had already been put once in jeopardy by the earlier dismissal of the complaint and so was not subject to further prosecution for that conduct.

It may be accepted, for argument, that jeopardy attaches at the time trial commences that is, when the jury is empaneled and sworn or, in a trial to the court, when the witnesses are sworn. 22 C.J.S. Criminal Law § 241. That, of course, presupposes that a criminal action has commenced before a tribunal with competent jurisdiction over the subject matter. It is provided clearly by law that all felonies and misdemeanors shall be prosecuted by indictment or information (Rule 21.01) and that prosecutions before a magistrate for misdemeanor shall be by information only. (Rule 21.02). It is provided also that an information shall be a plain, concise and definite written statement of the essential facts which constitute the offense charged, signed by the prosecutor. Rule 24.01(a).

It is evident that the initial complaint signed by a police officer was not an information within these essential terms. An information means a prosecution instituted by an officer with the duty to prosecute criminal offenses; the oath of a private person confers no jurisdiction to adjudicate an offense. State v. Thompson, 81 Mo. 163 (1883). In the absence of formal accusation by information Magistrate Davis acquired no jurisdiction over the criminal prosecution against the defendant. State v. Gladies, 456 S.W.2d 23, 25(3-5) (Mo.1970). There was no risk of determination of guilt, and therefore, no jeopardy. United States v. Lasater, 535 F.2d 1041, 1047(5) (8th Cir. 1976).

It is equally evident that the subsequent proceeding before Magistrate Berrey, although on a form captioned General Complaint, was an information a written accusation of offense subscribed by the oath of the prosecutor. Rule 24.01(a).

It is the contention of the State that where loss from the fraudulent use of credit card exceeds $100, the statute makes the offense a felony. The jurisdiction of the magistrate in a case of felony so the argument continues is limited to the preliminary inquiry on complaint whether there is probable cause that a felony was committed and that the defendant was the actor. Such a proceeding, we agree, is in no sense a trial, does not determine guilt or innocence, and so cannot give rise to principles of double jeopardy. State v. Crouch, 353 S.W.2d 597, 600(6) (Mo.1962); State v. Thomas, 529 S.W.2d 379, 382(2-5) (Mo.1975). We have concluded that § 561.415 charges a misdemeanor but for other reasons which appear not an offense within the competency of a magistrate to adjudicate.

The terms of § 561.415 specifically declare that "(a)ny person, firm or corporation, (who defrauds another by the use of a charge account, credit card or other credit device) is guilty of a misdemeanor" and is punishable by fine not to exceed five hundred dollars or confinement in the county jail for not more than one year, or both. The statute then provides that where the value of the goods lost from the deception exceeds one hundred dollars the punishment shall be by fine or confinement in the county jail or by "imprisonment by the Department of Corrections for not more than five years". The relator argues that the statutes which define felony and misdemeanor conclusively determine the grade of offense according to the mete of punishment. Section 556.020 defines a felony to mean any offense punishable with death or imprisonment in the penitentiary and § 556.040 defines misdemeanor as any offense punishable by fine or imprisonment in the county jail. Thus, contends the State, misdemeanor designation notwithstanding, the provision of § 561.415 which affixes punishment in the penitentiary conclusively settles that the offense charged in the information is a felony.

The relator cites State v. Daniels, 487 S.W.2d 465 (Mo.1972) to support that position. There the defendant was charged with an attempt to obtain merchandise of more than $100 value by the fraudulent use of a credit card. The defendant was found guilty and sentenced to a term of two years in the penitentiary. The court sua sponte questioned the validity of the punishment for an attempted violation of § 561.415. The court concluded (l.c. 487 S.W.2d 469):

Defendant was charged with and found guilty of an attempt to obtain merchandise of a value of more than $100. It is our view that any attempt, regardless of the value of the merchandise, is a misdemeanor under the statute. The more severe felony punishment is only applicable when the merchandise is actually obtained.

The relator takes hold of this literal language to prove the contention that to obtain goods of the value of more than $100 by fraud constitutes a felony under § 561.415. It is evident, however, that the terms misdemeanor and felony are used in the opinion merely to describe punishment and not to define the grade of offense. That opinion holds implicitly that where an offense is punishable as is violation of § 561.415 by either confinement in the county jail or imprisonment in the penitentiary, the law of attempt (§ 556.150(4)) allows a punishment by confinement in the county jail only for not more than one year. That is to say (in the idiom of the opinion) as a misdemeanor. The decision does not deal with the question present here: rather, in the context of opinion, the allusion to "(t)he more severe felony punishment" refers to punishment not grade of offense.

The question before us is authoritatively controlled by State ex rel. Butler v. Foster, 187 Mo. 590, 86 S.W. 245 (banc 1945). The issue in Butler was whether violation of the bribery statute (now § 557.090) was a felony and so within the jurisdiction of the circuit court, or a misdemeanor. That statute, as does § 561.415, designated the offense a misdemeanor but also provided for imprisonment in the penitentiary under certain circumstances. The decision rests on the principle that a Legislature, which alone can create an offense and define the punishment, also has the plenary power to fix the...