State v. Atterberry, 12971
| Decision Date | 05 October 1983 |
| Docket Number | No. 12971,12971 |
| Citation | 659 S.W.2d 339 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. John ATTERBERRY, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
John D. Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Bruce Farmer, Law Student (Appearing under Supreme Court Rule 13), Jefferson City, for plaintiff-respondent.
Michael Baker, Springfield, for defendant-appellant.
A Stone County jury declared defendant guilty of the class D felony of tampering with a witness as denounced by § 575.270 1. He was sentenced to imprisonment for a term of two years [§ 558.011-1(4) ] and appealed. 2
Tim and Caroline Sauer and their two sons were riding in an automobile when it was overtaken and sideswiped by a car which did not stop. Tim pursued the fleeing vehicle, stopped it and learned it was driven by Gary Moore and occupied by a woman. At Tim's instruction, Moore followed the Sauer automobile into Kimberling City. However, while Tim was telephoning the authorities anent the matter, Moore "took off" and was subsequently charged with leaving the scene of an accident. Five days after this occurred Caroline was told to contact defendant because he, for the benefit of Moore, had offered to pay for repairing the Sauer automobile and pay to Tim and Caroline an additional $200. Three days thereafter because neither Tim nor Caroline had contacted him, defendant telephoned the Sauers' restaurant and asked to speak with Tim. When Caroline told him Tim was absent, defendant conversed with Caroline and repeated the offer previously relayed. Defendant explained the offer was conditional upon Tim going to Moore's lawyer and signing a statement that the vehicle involved in the hit-and-run did not belong to and had not been driven by Moore. When Caroline told defendant that neither she nor Tim would accede to his suggestion defendant, inter alia, said "Everybody has a price," "You better do this or else" and "You'd better take the money or else."
Section 575.270 reads as follows: (Emphasis supplied).
The information in the instant case charged "that on January 18, 1982, the defendant contacted Mrs. Tim Sauer ... and the defendant offered to confer a benefit upon or threatened Tim Sauer if he should testify." MACH-CR 29.86 is the approved form for charging the crime of tampering with a witness in violation of § 575.270 and the approved charge, as does the statute, includes the statement that defendant "with purpose to induce" the prospective witness in one of the enumerated ways did so by one of the acts described in law. Upon this appeal, defendant's counsel specifically complains that the information under which his client was tried and convicted, failed to properly charge the offense of tampering with a witness under § 575.270 in "that the allegation as to purpose is missing."
Rule 23.01(b)-2 provides that the information shall state plainly, concisely and definitely the essential facts constituting the offense charged. "Essential facts" means the elements of the offense and an information which does not allege the essential elements of the crime charged is void. State v. Ladner, 613 S.W.2d 951, 952[3-4] (Mo.App.1981). Essential elements of the crime charged which are missing from the information cannot be supplied by intendment or implication. State v. Charity, 619 S.W.2d 366, 367 (Mo.App.1981). The purpose of an indictment or information is to inform the...
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...is to “permit[ ] the trial court to determine whether sufficient facts are averred to support a conviction.” State v. Atterberry, 659 S.W.2d 339, 341 (Mo.App.S.D.1983). Thus, “[a]n indictment is bad and is properly dismissed if all the facts stated are true, and yet the accused can be innoc......
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