State v. Bott
| Decision Date | 10 December 1974 |
| Docket Number | No. 35791,35791 |
| Citation | 518 S.W.2d 726 |
| Parties | STATE of Missouri, Plaintiff-Appellant, v. Charles F. BOTT, Jr., Defendant-Respondent. . Louis District, Division Two |
| Court | Missouri Court of Appeals |
John C. Danforth, G. Michael O'Neal, David Robards, Jefferson City, Gene McNary, Frank J. Kaveney, Clayton, for plaintiff-appellant.
Raymond A. Bruntrager, Sr., St. Louis, for defendant-respondent.
The State appeals from the action of the trial court in dismissing an 18 count indictment against defendant as insufficient. In such a case appeal by the State is permissible. Rule 28.04, V.A.M.R.
Each count charges defendant as a councilman of the City of Maplewood with having participated in the approval of payments of personal expenses of defendant from city funds. Count I is representative of all eighteen counts (although the personal items or services involved differ) and is set forth in full in the margin. 1
The State contends that the indictment sufficiently charges a violation of Sec. 558.260 2 RSMo 1969, V.A.M.S., or alternatively that it charges a violation of Sec. 558.250, RSMo 1969. Defendant contends that the indictment is defective because it fails to allege the specific fund from which the money was improperly diverted.
In testing the sufficiency of the indictment we must determine whether:
'. . . it contains all the essential elements or ingredients of the offense set out in the statute and clearly apprises the court and the defendant of what facts constitute the offense whereof the defendant is charged; and also, whether it would be a bar to subsequent prosecution for the same offense.' State v. Barlett, 394 S.W.2d 434 (Mo.App.1965) l.c. 436.
We conclude this indictment meets that test. We can concede that the statute is inartfully drawn and at times confusing. Its purpose was and is to '. . . punish certain abuses of public trust.' See Laws 1872, p. 59. Part of the confusion arises because of the attempt of the general assembly to cover a broad range of abuses of public trust by individuals occupying different and diverse positions. Deleting those portions which have no application here the statute covers two types of conduct both referred to in the indictments, to wit:
(1) If any member of any city council shall knowingly and without authority of law vote for the disbursement of any money belonging to such city to any use or purpose other than the specific use or purpose for which the same was collected or authorized to be collected by law and such illegal disbursement be in fact effected
and
(2) if any member of any city council shall knowingly aid, advise or promote the appropriation, disbursement or disposition of any such money for any purpose not directed and warranted by law and such illegal disposition be in fact effected. . . .
We are unable to conclude that the words 'specific use' are equivalent to the term 'specific fund' as defendant contends. Revenue may be collected by a municipality for many uses including its general needs and the payment of its administrative expenses. It is unlawful for a city to lend its credit or grant public money to any private individual. Constitution Art. VI, Sec. 25. The indictments charge that defendant voted to expend public money for the payment of a private individual debt and we do not find it necessary that the purpose for which the money was collected be included in the indictment, for the purpose for which it was collected was clearly not that for which it was expended. A different problem would be presented if the charge were one of diverting money from one public purpose for which it was collected to another public purpose for which it was not.
We are also unable to conclude that the words 'such money' in the second offense above refers back to the specific use language in the first offense. Rather 'such' refers to the words 'belonging to any such city.' The first offense covers the action of a council member voting for the improper diversion of funds either to an illegal use or to a legal use for which the money was not collected. The second offense covers the actions of the council member in aiding, advising or promoting the diversion of funds to...
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