State v. Elam, WD
| Decision Date | 14 December 1982 |
| Docket Number | No. WD,WD |
| Citation | 646 S.W.2d 834 |
| Parties | STATE of Missouri, (Respondent), v. Randy ELAM, (Appellant). 33514. |
| Court | Missouri Court of Appeals |
Gary E. Ravens, Marceline, for appellant.
John Ashcroft, Atty. Gen., Priscilla Gunn, Asst. Atty. Gen., Jefferson City, for respondent.
Before SOMERVILLE, C.J., CLARK, J., and MOORE, Senior Judge.
Randy Elam was convicted of the offense of passing a bad check, § 570.120, RSMo 1978, and he was sentenced as a persistent offender to a term of five years. Reversed.
On this appeal, Elam contends the evidence produced by the state made no submissible case against him. We agree and therefore consider only incidentally his second point that the state's verdict directing instruction was erroneous because essential elements of the offense were omitted. The two points are, however, associated because the proof and the instruction were both deficient in the same respect.
The transaction in question was one in which Elam and a female companion, Jacqueline J. Cordillo, purchased a used truck on July 15, 1981 from Briggs-Cupp Chevrolet in Marceline. The only witness to testify about the purchase was Bob Dean Cupp, a proprietor of the business. According to Cupp, Elam and Cordillo came to the automobile agency to buy a vehicle and selected a 1973 Chevrolet pick-up. The price agreed upon was $2,250.00 to which was added $23.00 for gasoline to fill the truck's fuel tank. Cordillo made out a check in the amount of $2,273.00 drawn on her account at the Macon-Atlanta Bank in Macon, Missouri and delivered the check to Cupp. At the request of Elam and Cordillo, papers for processing the vehicle title were made out in the names of Randy and Jacqueline Elam, the explanation being offered that the two had been married only weeks before and Jacqueline had not yet changed the name on her bank account.
The Cordillo check was deposited in due course by Briggs-Cupp but was returned within a few days by the drawee bank because Cordillo had insufficient funds in her account. Cupp promptly confronted Elam and Cordillo but was informed by Elam that $7500.00 in cash had been deposited to the account in a night deposit facility and some mistake had evidently been made by the bank. Elam assured Cupp that they would "straighten it out." Further attempts by Cupp to collect the funds did not prove successful and the present charge was lodged. 1
Additional evidence at trial included the records of Jacqueline Cordillo's account at the Macon-Atlanta Bank from March 31 to August 27, 1981. The account showed an overdrawn balance throughout and numerous returned checks including the one to Briggs-Cupp. Two deposits were reflected to the account, $233.58 in April and $675.00 in July. The pick-up truck was not recovered but was traced to Colorado where, according to Cupp, Elam and Cordillo "had traded it off."
Prior to the purchase of the truck, Cordillo was not a person known to Cupp, but he was acquainted with Elam because of some "garage work." There was, however, no evidence that Cupp relied upon or that Elam made any representations as to Cordillo's financial responsibility or that Elam was knowledgeable as to the status of Cordillo's bank account.
In his first point, Elam asserts that the state's verdict directing instruction was erroneous because it authorized a guilty verdict without requiring proof of knowing participation by Elam in the issuance or passing of the bad check. The second point contends the state's case failed because there was no evidence Elam knew the check Cordillo issued would not be paid. The instruction given read as follows:
Elam was here charged under § 562.041, RSMo 1978 as an aider and abettor to Jacqueline Cordillo in the offense of passing a bad check. This latter offense is defined by § 570.120, RSMo 1978 as issuing a check with purpose to defraud knowing the check will not be paid by the drawee. As to aiders and abettors, § 562.041 fixes criminal responsibility for the act of another where it is shown that the accused, although not himself a principal, aided or attempted to aid in the planning, committing or attempting to commit the offense with purpose to promote consumation of the offense. The offense of passing a bad check by statutory definition requires proof of a particular culpable mental state, the intent to defraud.
In State v. White, 622 S.W.2d 939 (Mo.banc 1981), cert. denied, 456 U.S. 963, 102 S.Ct. 2040, 72 L.Ed.2d 487, (1982) the court discussed aider and abettor responsibility for criminal acts, particularly as to the extent and degree of culpable mental state essential to conviction. Quoting from State v. Grebe, 461 S.W.2d 265 (Mo.banc 1970), the court noted that prior to the adoption of the new criminal code, an essential element of aider liability is an intent to aid, that is, those who act together share consciously in the criminal act as something they intend to bring about. The court then concluded that the new criminal code has followed the pre-existing common law and has restated the same principles announced in State v. Grebe. In the language of State v. White, ...
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