State v. Fenner

• Decision Date: 16 July 1962
• Docket Number: No. 48975,No. 1,48975,1
• Parties: STATE of Missouri, Respondent, v. Larry E. FENNER, Appellant
• Court: Missouri Supreme Court

Page 867

358 S.W.2d 867

STATE of Missouri, Respondent, v. Larry E. FENNER, Appellant.

No. 48975.

Supreme Court of Missouri, Division No. 1.

July 16, 1962.

Thomas F. Eagleton, Atty. Gen., Robert E. Hogan, Special Asst. Atty. Gen., Jefferson City, for respondent.

DALTON, Presiding Justice.

The defendant was charged and convicted of the offense of stealing $2000 by deceit and was sentenced to imprisonment in the county jail for one year. See Sections 560.150 and 560.161 RSMo 1959, V.A.M.S. He has appealed from the judgment entered against him.

The verdict does not specifically find the defendant guilty of the offense, 'as charged,' nor of stealing property of the value of more than $50 by deceit; however, the offense of which defendant was convicted is a graded or mixed felony and, in view of the amount charged to have been stolen and the general verdict of guilty the jurisdiction of the appeal is properly in this court.

Appellant is not represented by counsel in this court and it is our duty to consider the valid assignments of error as set out in defendant's motion for a new trial. Of course, no assignment of error respecting the sufficiency of the information, verdict, judgment and sentence is necessary upon this appeal because the appellate court is required to render judgment as to these matters upon the record before it. Supreme Court Rule 28.02, V.A.M.R. However the first assignment of the motion for a new trial is that the information does not state facts sufficient to constitute a crime under any statute or under the common law.

Section 560.156 RSMo 1959, V.A.M.S., upon which the prosecution is based, is in part as follows: 'Stealing--element of offense. 1. As used in sections 560.156 and 560.161, the following words shall mean: (1) 'Property', everything of value whether real or personal, tangible or intangible, in possession or in action, and shall include but not be limited to the evidence of a debt actually executed but not delivered or issued as a valid instrument and all things defined as property in sections 556.070, 556.080 and 556.090, RSMo; (2) 'Steal', to appropriate by exercising domminion over property in a manner inconsistent with the rights of the owner, either by taking, obtaining, using, transferring, concealing or retaining possession of his property.

'2. It shall be unlawful for any person to intentionally steal the property of another, either without his consent or by means of deceit. * * *' And see the several sections referred to in this statute.

An amended information purporting to charge an offense under this statute was filed in the Circuit Court of Boone County on March 14, 1961, as follows:

'Comes now Larry M. Woods, Prosecuting Attorney within and for the County of Boone and State of Missouri, and upon his official oath informs the Court that Larry E. Fenner on or about the 3rd day of February, 1960, at the said County of Boone and State of Missouri, did wilfully, unlawfully, feloniously and intentionally steal Two Thousand Dollars ($2,000.00), the property of the Columbia Savings Bank of Columbia, Missouri, by means of deceit, and did then and there obtain said Two Thousand Dollars ($2,000.00) as a loan from said bank by falsely and fraudulently representing to said bank that he, the said Larry E. Fenner, was the owner of a certain 1952 Model A. John Deere tractor complete with plow, disc, and cultivator and there were no other mortgages or liens against said tractor, plow, disc, and cultivator, where as in truth and in fact said 1952 John Deere tractor was owned by John Reith of Kirkwood, Missouri, and said plow, disc, and cultivator had been previously mortgaged to Ellsberry Equipment Company of Ellsberry, Missouri; against the peace and dignity of the State.'

This information was not attacked by motion to dismiss, nor was any motion for a bill of particulars filed or ruled. See Supreme Court Rules 25.05 and 24.03. The record does not show any formal arraignment of the defendant; however, that is immaterial since the defendant appeared in person and by attorney and was tried as if he had been arraigned and had entered a plea of not guilty. See Supreme Court Rule 25.04; Section 546.020 RSMo 1949, V.A.M.S.; State v. Ferris, 322 Mo. 1, 16 S.W.2d 96, 99.

The statute in question, Section 560.156 RSMo 1959, V.A.M.S., creates and denounces a new and distinct offense. State v. Zammar, Mo.Sup., 305 S.W.2d 441; State v. Gale, Mo.Sup., 322 S.W.2d 852, 854; State v. Mace, Mo.Sup., 357 S.W.2d 923. Generally speaking, an information charging the commission of an offense that is created by statute is good if it follows the language of the statute, and this is particularly true if the language of the statute which purports to define the crime sets forth all of the constituent elements of the offense. State v. Varsalona, Mo.Sup., 309 S.W.2d 636, 639[2-3]; State v. Futrell, 329 Mo. 961, 45 S.W.2d 588, 590. Such is not the case if the statute creating the offense uses generic terms in defining the offense and does not individuate the offense with such particularity as to notify the defendant of what he or she is to defend against. We find this statute to be of the latter class. It is vitally important that every man accused of a crime should have a reasonable opportunity to know what he is charged with, and that he not be called upon to meet evidence at the trial which he could not have anticipated from the charge filed against him.

As stated in State v. Mace, supra: 'When the Legislature (Laws 1955, p. 507, Secs. 560.156, 560.161), for reasons well known to all attorneys familiar with criminal procedure, repealed the multitude of confusing statutes dealing with the many grades and differing definitions, distinctions and penalties fixed for the crimes of larceny, embezzlement, and the fraudulent appropriation of the property of another, and in lieu thereof abolished the theretofore technically described distinctions between those offenses and placed all of them within the general term of 'stealing', its purpose and intent were to avoid the many reversal of cases based upon technical grounds. But these statutes do not and could not constitutionally to away with the right of the accused to demand the nature and cause of the accusation made against him. Article I, Sec. 18(a), Constitution of Missouri, V.A.M.S. The requirements of an indictment or information have been thus well stated: 'First, to furnish the accused with such a description of the charge against him as will enable him to make his defense, and avail himself of his conviction or acquittal for protection against a further prosecution for the same cause; and, second, to inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction, if one should be had.' United States v. Hess, 124 U.S. 483, 8 S.Ct. 571, 574, 31 L.Ed. 516. See also United States v. Callanan, 1953, (U.S.D.C., Mo.) 113 F.Supp. 766.'

As to the validity of the information respondent says: 'The word 'steal' is defined by statute, and the information alleges intentional stealing, by means of deceit, and then sets forth the deceitful means used'; and that this should be sufficient.

It will be noted that the information does not specifically describe the property charged to have been stolen by deceit, nor does it charge that the defendant, on the date mentioned, obtained '$2000 in lawful money of the United States of the value of $2000' from said bank, nor does it specifically describe any other property, tangible or intangible, such as a check, draft, certificate of deposit, credit, et cetera, of the value of $2000, although it is subsequently charged that $2000 was obtained 'as a loan from the bank.' Even the term 'as a loan' might be considered ambiguous since the information does not expressly allege that the mentioned $2000 was in lawful money of the United States of the value of $2000.

Respondent insists that the essential question before the court is whether the information 'properly charges the defendant with the offense of stealing by deceit'; however, we have reached the conclusion that in view of other defects in this record we need not determine the validity of this information or whether it would be sufficient under the Statute of Jeofails, Section 545.290 RSMo 1959, V.A.M.S., if the record was otherwise sufficient. Instead, we shall consider the sufficiency of the evidence to show any offense under the statute.

Various assignments of error in the motion for a new trial are directed to the sufficiency of the evidence to support the verdict of the jury and error is particularly assigned on the court's refusal to direct a judgment of acquittal at the close of all the evidence. Supreme Court Rule 26.10. A review of the State's evidence is required. The State's evidence tended to show that on February 3, 1960, defendant was indebted to the Columbia Savings Bank of Columbia, Missouri, on a note for $1985 dated December 31, 1959, due and payable thirty days after date and secured by a chattel mortgage of the same date. Across the right end of the face of the note was the typewritten word 'tractor'. The property described in the chattel mortgage was as follows: '1952 model A John Deere tractor complete with plow, disc, mower and cultivator.' No further description appears; no serial numbers were shown. The location of the property was not specifically designated and no one was named as being able to identify the property.

When the note became due and payable the defendant did not pay it, nor did he respond to notices mailed by the bank to him at Ashland, Missouri (the post-office address...