State v. Barkwell

• Decision Date: 25 October 1979
• Docket Number: No. 10913,10913
• Citation: 590 S.W.2d 93
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Nelson Eugene BARKWELL, a/k/a Don Barkwell, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 93

590 S.W.2d 93

STATE of Missouri, Plaintiff-Respondent, v. Nelson Eugene BARKWELL, a/k/a Don Barkwell, Defendant-Appellant.

No. 10913.

Missouri Court of Appeals, Southern District, Division One.

Oct. 25, 1979.

Motion for Rehearing or to Transfer Denied Nov. 13, 1979.

David V. Bear, III, Bear, Hines & Thomas, Columbia, for defendant-appellant.

John Ashcroft, Atty. Gen., Brenda Farr Engel, Paul Robert Otto, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.

FLANIGAN, Chief Judge.

Each count of the eight-count information charged defendant Barkwell with the offense of stealing. § 560.156. ¹ A jury found defendant not guilty of the charges contained in the first three counts and guilty of the charges contained in Counts IV, V, VI, VII, and VIII and fixed the punishment at two years' imprisonment on each of the latter counts. The judgment and sentence of the trial court directed that the sentences run consecutively. Defendant appeals.

Defendant does not challenge the sufficiency of the evidence to support the verdict and a brief summary is sufficient. In 1976, the year of the offenses, Joann Brown was the treasurer of Newton County. She became acquainted with defendant through a "lonely hearts club" of which she was a member. The acquaintanceship proved financially disastrous for Miss Brown. After she had given defendant approximately $50,000 of her own assets, he induced her, by threats, to write unauthorized checks on the bank account in which the county funds were deposited. She turned over to defendant the proceeds of each check.

Count IV of the information is set out below. ² The other four counts on which defendant was found guilty were essentially the same as Count IV except that each of them dealt with a different check drawn on a subsequent date in 1976 and alleged that the acts of the defendant, set forth in the second paragraph of each count, took place on a stated date shortly before the date the respective check was drawn by Miss Brown. The checks were in the respective amounts of $301.07 (Count V), $50.00 (Count VI), $588.11 (Count VII) and $588.11 (Count VIII).

The verdict of the jury was returned on October 25, 1977. Defendant filed a motion for new trial on November 9, 1977. The motion was not timely for the reason that it was not filed "within ten days after the return of the verdict" and the record fails to show that the defendant applied for, or that the trial court granted, an extension of time for filing the motion. Rule 27.20(a). State v. Larrabee, 572 S.W.2d 250, 251(2) (Mo.App.1978); State v. Eaton, 568 S.W.2d 541, 543 (Mo.App.1978). If a motion for new trial is not filed within the time prescribed by Rule 27.20(a) this court, sua sponte, must take notice of that fact; further, the motion, being untimely, is a nullity and preserves nothing for appellate review. State v. Larrabee, supra, 572 S.W.2d at 252(3).

One of defendant's three "points relied on" challenges the ruling of the trial court with respect to the admissibility of certain evidence. That assignment of error need not be considered for the reason that it has not been preserved for appellate review.

Defendant's other two points challenge, respectively, the propriety of the action of the trial court in permitting the state to amend the information and the sufficiency of the information. The latter point must be considered on appeal "although not raised in the trial court or preserved for review." Rule 28.02. It is at least arguable that the former point has not been preserved for appellate review but these two points are so interlocked that this court has concluded to consider the former, as well as the latter, on its merits. Rule 27.20(c).

Defendant's first point is that the trial court erred in permitting the state to amend the information at the close of the state's evidence. The record shows that at that stage of the trial the prosecutor made the following statement: "I am going at this time to request, under Rule 24.02, that the information be amended, as I filed, not so it changes the charge at all, only to show the statute numbers which the Revised Statutes show he has violated those statute numbers, in addition to the one already on the information, ³ 560.156, 560.161. Section 560.156, Judge, which is the statute having to do with the crime of stealing, and section 560.161, which is the statute which discusses punishment."

The amendment, which the court permitted and which is the target of defendant's first point, consisted of showing on the face of the information "the section of the Revised Statutes of Missouri which proscribes the conduct charged" and "the section of the statutes which fixes the penalty or punishment therefor." Rule 24.01(a).

"The court may permit an information to be amended . . . at any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced." Rule 24.02.

The record discloses that prior to the commencement of the trial defendant was aware of the fact that his conviction could result in imprisonment in the penitentiary. Before the voir dire examination of the veniremen was conducted defense counsel placed defendant on the stand and elicited testimony from him to the effect that the defendant preferred not to testify before the jury. Further questioning by his own counsel elicited testimony from the defendant to the effect that there had been some plea bargaining with the prosecutor but that defendant decided that "I do not want to plead guilty and I do not want to accept his offer of Penitentiary time."

The challenged amendment made no change in the facts alleged in the five counts under consideration. The amendment did not charge an additional or different offense. There is no showing of prejudice to the substantial rights of defendant. Under these circumstances the trial court did not err in permitting the amendment. "The amendment merely correctly and sufficiently charges the offense attempted to be charged in the original information." Johnson v. State, 485 S.W.2d 73, 75(1) (Mo.1972). See also State v. Morris, 470 S.W.2d 467, 469(2) (Mo.1971); State ex rel. Lodwick v. Cottey, 497 S.W.2d 873, 881(10, 11) (Mo.App.1973).

Defendant's first point has no merit.

Defendant's second point is that each of the five counts upon which the guilty verdict was returned is fatally defective. If the contention is a valid one, the defect is jurisdictional. ⁴

"The defendant in a criminal case has a right to demand the nature and cause of the accusation, and the indictment or information must be sufficiently definite to enable him to prepare his defense and to constitute a bar to further prosecution for the same offense. Art. 1, § 18(a), Constitution of Missouri 1945, V.A.M.S." State v. Tandy, 401 S.W.2d 409, 412 (Mo.1966).

The alleged deficiency in Count IV (and in the companion counts) to which defendant alludes is that it fails to use the word "feloniously" to describe the conduct ⁵ of defendant ("abetted, counseled, commanded or encouraged, and thereby directly contributed to bring about the commission of the aforesaid acts . . .") contained in the second paragraph of that count.

The authority upon which defendant principally relies is State v. Vonderau, 438 S.W.2d 271 (Mo. banc 1969). In that case the supreme court held an indictment to be fatally defective where it charged defendant with willfully striking a police officer but failed to charge that the striking was done "feloniously." The court quoted, with approval, prior cases stating the following principles: "The word 'feloniously' is indispensably necessary in all indictments for felonies; whether statutory or by common law, . . . (T) here is no exception to the necessity of its (the word 'feloniously') use in Missouri in any indictment or information where the offense charged is a felony . . . . (T)he word 'felony' . . . is held to mean any offense for which the accused may, upon conviction, be imprisoned in the penitentiary, although the minimum punishment for same may be a jail sentence or a fine. * * * (T)he use of the word 'feloniously' is necessary for the very sufficient reason that its use informs the accused of the nature or grade of crime he is alleged to have committed. . . ."

The court also stated at p. 273: "This Court has consistently held that the use of the word 'feloniously' in an indictment is fundamental and essential to its validity. The indictment is fatally defective for failure to allege that the act in question was 'feloniously' done. The case must be reversed and remanded for new trial."

It should be noted that Count IV contains the word "feloniously" in its first paragraph where the conduct of Joann Brown was described. The validity of defendant's second point hinges upon the significance of the fact that the word does not appear in the second paragraph of that count.

A case not cited by either side but which bears striking resemblance to the case at bar is State v. Hang Tong, 115 Mo. 389, 22 S.W. 381 (1893). There the defendant was charged with aiding and abetting one Lee in an assault with intent to kill two victims. The indictment, in addition to its formal portions, charged that Lee "with force and arms, in and upon (the victims) Feloniously, willfully, on purpose, and of his malice aforethought, did make and assault, and the said (Lee), with a certain weapon, to wit, a pistol loaded with gunpowder and leaden balls, then and there, Feloniously, willfully, on purpose, and of his malice aforethought, did shoot off, at, against, and upon (the victims) . . . with the pistol aforesaid, one wound, with the intent, then and there, them (the victims) Feloniously, willfully, on purpose, and of his malice aforethought, to kill." The remaining portion of the indictment, charging the conduct of the defendant, alleged that the defendant "was then and there present, aiding and abetting, advising and counseling,...