State v. Civella, s. 23672-23674
| Decision Date | 04 February 1963 |
| Docket Number | Nos. 23672-23674,s. 23672-23674 |
| Citation | 364 S.W.2d 624 |
| Parties | STATE of Missouri, Respondent, v. Nick CIVELLA, Appellant. STATE of Missouri, Respondent, v. Louis CANGELOSE, Appellant. STATE of Missouri, Respondent, v. Tom Joseph CACIOPPO, Appellant. |
| Court | Missouri Court of Appeals |
James Patrick Quinn and Alex Peebles, Kansas City, for appellants.
William. A. Collet, Pros. Atty., Carrol C. Kennett, Asst. Pros. Atty., Kansas City, for respondent.
Before us are the consolidated appeals of Nick Civella, Louis Cangelose, and Tom Joseph Cacioppo, each of whom upon his plea of guilty to the misdemeanor charge of unlawfully possessing 'certain gambling equipment, to wit: dice or crap table and dice' contrary to Section 563.374 RSMo 1959, V.A.M.S., was by the Circuit Court of Jackson County fined $500.00 and sentenced to six months in the county jail.
Appellants have challenged the jurisdiction and power of the circuit court to impose the mentioned fines and imprisonment for the reason that the fact of the informations disclosed that the misdemeanor charge was barred by the one year statute of limitations set forth in Section 541.210 RSMo 1959, V.A.M.S.
A chronological statement of the facts is necessary to an understanding of the legal questions involved. Nick Civella was indicted by a Jackson County Grand Jury, and the indictment, C-30343 was filed in the circuit court on September 10, 1960. The indictment was drawn in accordance with Section 563.370 RSMo 1959, V.A.M.S., 'keep a certain table and gaming device,' the allegations of which indictment provided, '* * * on or about the 10th day of May, 1958, one Nick Civella, * * * did then and there unlawfully, wilfully feloniously and intentionally keep a certain table and gaming device commonly called a crap table and dice, adapted and devised for the purpose of playing a game of chance, commonly called dice for money and did then and there unlawfully and feloniously entice, permit and induce divers persons to bet and play at and upon said table and gambling devices * * *.'
The above described indictment was for a felony and the three year statute of limitations, Section 541.200 RSMo 1959, V.A.M.S., was applicable. We note that since theoffense was alleged to have occurred on May 10, 1958, and the indictment was returned and filed in court on September 10, 1960, the indictment and its charged felony offense were well within the mentioned three year statute of limitations period applicable to such felonies.
On November 4, 1960, an assistant prosecutor filed Information No. C-30343 in lieu of Indictment No. C-30343. This information also charged a felony, the only change from the indictment being that the information charged the same offense in more detail. This information with its charged felony offense was also well withing the three years allowed by the mentioned Statute of Limitations for such felonies.
On January 12, 1962, the assistant prosecutor filed an Amended Information, C-30343, which reduced the charge from a felony to a misdemeanor. The amended information was drawn under Section 563.374 RSMo 1959, V.A.M.S., and read in part that Nick Civella '* * * on or about the 10th day of May, 1958, * * * (did) unlawfully possess certain gambling equipment, to wit: dice or crap table and dice; * * *.'
The facts as set out above, other than the name of the particular accused, are identical for all three appellants except that the indictment and informations against Cangelose stated the date of the offense charged as being October 24, 1957, rather that May 10, 1958.
To these charges each appellant had entered a plea of not guilty. After the amended informations charging a misdemeanor had been filed and on January 12, 1962, each appellant withdrew his plea of not guilty and entered a plea of guilty to the misdemeanor charged. The circuit court accepted the pleas of guilty and deferred judgment and sentence. Eventually, and on March 2, 1962, the circuit court pronounced judgment and sentence, a fine of $500.00 and a 6 months' jail term, for each appellant. These appeals followed.
Section 541.210 provides: 'No person shall be prosecuted, tried or punished for any offense, other than felony, or for any fine or forfeiture, unless the indictment be found or prosecution be instituted within one year after the commission of the offense, or incurring the fine or forfeiture.'
As an aid to an understanding of the various dates involved, the following diagram is helpful:
-A-
May 10, 1958 Date of the offense in all charges, except Cangelose's date was October 24, 1957.
-B-
September 10, 1960 Date Indictment for a felony was filed in court.
-C-
November 4, 1960 Date Information for a felony was filed in lieu of Indictment.
-D-
January 12, 1962 Date Amended Information was filed in Court reducing felony to a misdemeanor and date defendants pleaded guilty to misdemeanor.
The basic question presented is whether the quoted limitations statute applicable to misdemeanors deprived the circuit court of power or jurisdiction to accept the pleas of guilty to the misdemeanors charged and to assess punishment.
It is the State's position that the defendants in a criminal proceeding may bind themselves by agreement; that the defendants 'to save themselves from exposure to felony convictions prevailed upon the State to substantially reduce that exposure by an assurance, through their counsel, that they would plead guilty to a lesser charge with lesser penalities;' and after having received a stiffer punishment (a jail sentence) from the circuit court than they anticipated cannot now challenge the amended information or the circuit court's judgment and punishment.
For convenience of treatment we shall divide up the rather general contentions of the state into specific questions. First, upon an indictment or information for a larger crime (a felony) at a time beyond the period of statutory limitations upon a lesser crime (a misdemeanor) whose elements are included within the larger crime, may the accused be convicted by trial or by plea of the lesser offense?
The question presented is not new and nearly all of the states at one time or another have ruled on it. For a summary of their views we quote from a recent and thorough annotation on the subject-contained in 47 A.L.R.2d 887, 'Limitations Statute--Lessor Offense', loc. cit. 888, 'The overwhelming weight of authority is to the effect that one cannot be convicted of a lesser offense includible within a larger crime, where prosecution for the latter was commenced after expiration of limitations applicable to the lesser offense.' It is further stated in that annotation, loc. cit. 888, 'And the rule has been held applicable even though a statute expressly provides that upon indictment for the larger crime one may be convicted thereunder of certain lesser offenses included within it, * * *.' 1 See, also 47 A.L.R.2d loc. cit. 892, Section 7.
That the above is the well established rule in the United States is further illustrated by quotes from our recognized text authorities on the subject. In 22 C.J.S. Criminal Law Sec. 225(3), page 584, it is stated, 'The general rule, however, is that if, on an indictment for a crime, accused is found guilty of some less crime included therein, and which constitutes a part of it, the conviction cannot be sustained, where the crime for which he is convicted is barred by the statute of limitations, although the crime of which he was indicted is not thus barred.' It is noteworthy that among the supporting citations for this statement of the rule is the Missouri case of State v. Chevlin, Mo.Sup., 284 S.W.2d 563.
In 15 Am.Jur., Criminal Law, Sec. 343, page 33, it is expressed,
Typical of the many Federal Court decisions on the subject is Chaifetz v. United States (1960), 109 U.S.App.D.C. 349, 288 F.2d 133, 135, (Citations omitted.)
Typical of the many state court decisions on the subject is State v. King, 140 W.Va. 362, 84 S.E.2d 313, 47 A.L.R.2d 878, which after reciting the general rule that one indicted for an offense not barred by limitation, but convicted of a lesser included offense which is so barred is entitled to discharge stated loc. cit. 318, 'Our holding in this regard is in accordant (sic) with the great weight of American authority.'
Basic to the general rule above stated is the general recognition that statutes of limitation in criminal cases, such as that before us--'No person shall be prosecuted, tried, or punished * * *' are 'not merely statutes of repose but create a bar to...
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Smith v. State
...Super. Ct. 2004) (same). See also Longhibler v. Missouri , 832 S.W.2d 908 (Mo. 1992) (overruling prior decision in Missouri v. Civella , 364 S.W.2d 624 (Mo. Ct. App. 1963) and holding statute of limitations is not jurisdictional and can be waived; a voluntary plea of guilty waives all non-j......
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