State v. Hook

• Citation: 433 S.W.2d 41
• Decision Date: 07 October 1968
• Docket Number: No. 24947,24947
• Parties: STATE of Missouri, Respondent, v. Patricia M. HOOK, Appellant.
• Court: Court of Appeal of Missouri (US)

Page 41

433 S.W.2d 41

STATE of Missouri, Respondent, v. Patricia M. HOOK, Appellant.

No. 24947.

Kansas City Court of Appeals, Missouri.

Oct. 7, 1968.

Philip H. Schwarz, St. Joseph, for appellant.

Alden S. Lance, Pros. Atty., Andrew County, Savannah, for respondent.

HOWARD, Presiding Judge.

Appellant was found guilty of a violation of Section 557.090, R.S.Mo. 1959, V.A.M.S., and sentenced to thirty days in jail. She has duly appealed to this court. Violation of this statute is expressly declared to be a misdemeanor and we have jurisdiction of this appeal. We shall refer to the parties as they appeared below.

Early in the morning of January 30, 1966, one Gerald V. Hook was discovered in Andrew County with his stepdaughter, Frances Bond, age 15 years. Hook was taken into custody and charged with molesting a minor in violation of Section 563.160 (unless otherwise specified, all statutory references are to R.S.Mo. 1959 and V.A.M.S.), which charge constitutes a felony. This charge was filed against Hook in magistrate court on January 30, 1966, by the prosecuting attorney of Andrew County. At about 3:00 a.m. on the morning of January 30, two members of the highway patrol returned Frances Bond to her mother's home in St. Joseph, Missouri. Her mother is Patricia Hook, the defendant herein. At this time the officers advised Mrs. Hook that her daughter would be needed as a witness against her stepfather. They testified that Mrs. Hook answered that the daughter would be available.

Frances Bond continued going to high school in St. Joseph for four days after this incident and then stopped going to school. On February 4, defendant took her by automobile to St. Louis and put her on a bus to go to the home of defendant's father in Marshall, Illinois, where she stayed. Gerald Hook's preliminary hearing was first set for February 8, 1966, but was continued to February 15 when it was held and he was bound over to circuit court. Two subpoenas were issued for Frances Bond, one for each hearing date, but the officials were not able to serve either one and she did not appear on either date. An information charging Gerald Hook with the felony of child molestation was filed in circuit court April 30, 1966.

The defendant, Patricia Hook, was charged in an information with the violation of Section 557.090, as follows:

'Alden S. Lance, Prosecuting Attorney, within and for Andrew County, in the State of Missouri, upon information and belief, and upon his official oath, informs the Circuit Court of Andrew County that on or about the 8 day of February, 1966, at and in said County of Andrew and State of Missouri, the defendant, Patricia Hook, did then and there unlawfully and willfully by removing and concealing, directly or indirectly, induce or attempt to induce a witness, to-wit: Frances Bond, her minor child, of whom defendant has sole legal custody, or which Frances Bond might be a competent witness, to absent herself or avoid a subpoena or other process, or to withhold her evidence, or did deter or attempt to deter her from appearing or giving evidence in the criminal cause wherein Gerald V. Hook is charged with a felony in Andrew County, Missouri contrary to the form of the Statutes in such cases made and provided, and against the peace and dignity of the State.'

We are first met with a contention that the information is fatally defective because it charges numerous acts in the alternative rather than in the conjunctive. We believe that this complaint is well-founded. Our courts have many times held that where a statute forbids several distinct acts in the alternative, an information charging more than one act must make such charge in the conjunctive. These cases state that an information charging the commission of two distinct acts in the alternative does not constitute a charge of the commission of either act. See State v. Barr, 326 Mo. 1095, 34 S.W.2d 477; State v. Bostic, Mo., 285 S.W. 432; State v. King, Mo.App., 285 S.W. 794, and the many cases found in the Missouri Digest, Indictment and Information, k72.

Section 557.090 reads as follows:

'Every person who shall, by bribery, menace or other means, directly or indirectly induce or attempt to induce any witness, or person who may be a competent witness, to absent himself or avoid a subpoena or other process, or to withhold his evidence, or shall deter or attempt to deter him from appearing or giving evidence in any cause, matter or proceeding, civil or criminal, and every such witness or person who may be a competent witness in any such case, who shall, directly or indirectly, accept, take or receive, or agree to accept, take or receive, any money or other valuable thing to absent himself, or avoid a subpoena or other process, or to withhold his evidence in any such case, every person offending against the provisions of this section shall be deemed guilty of a misdemeanor; provided, that if the case shall be a prosecution or proceeding against any person for a felony, the person so offending shall be punished by imprisonment in the penitentiary for two years, or in the county jail not exceeding six months, or by fine not less than one hundred dollars, or by both such fine and imprisonment.'

This information charges defendant, in the alternative, with each and every act denounced by the statute. These alternatives are not synonymous, see State v. Bostic, supra, and State v. Reask, Mo., 409 S.W.2d 76; neither are they merely descriptive material as in State v. Reask. Here defendant could not know whether she was charged with inducing or attempting to induce the witness to absent herself or to avoid a subpoena or to withhold evidence or with deterring her or attempting to deter her from appearing and giving evidence. Even though we are mindful of the rule that in cases of misdemeanors the information is not required to be so precisely stated as in cases of felony, we are convinced from the foregoing cases that the information in the case at bar is fatally defective and does not charge the commission of any offense and is not sufficient to advise the defendant of the charge against her so as to enable her to prepare her defense. See State v. Barlett, Mo.App., 394 S.W.2d 434, l.c. 436, where the court said:

'The test of the sufficiency of an information is usually said to be 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. The information should be reasonably understandable and make definite charges which are sufficient to clearly inform. Nothing which is material to the charge will be taken by intendment. In criminal cases all presumptions go in favor of innocence. The accused cannot be presumed to know and be apprised of that which is not clearly set forth. It devolves upon the pleader to set forth facts which bring the accused within the terms of the statute. State v. Mace, supra, Mo., 357 S.W.2d 923(3); State v. Cheney, Mo.App., 305 S.W.2d 892(2); State v. Murphy, 141 Mo. 267, 42 S.W. 936, 937. Thus it is that neither the court nor the defendant is required to go beyond the information in order to ascertain the crime with which defendant is charged nor to guess or speculate upon the meaning. This applies to misdemeanors as well as felonies.'

The state seeks to defend this information by asserting that it is similar to informations approved in State v. Biebusch, 32 Mo. 276, and State v. Tummons, 225 Mo.App. 429, 37 S.W.2d 499. An examination of these cases shows that in each instance the word 'and' was used and the word 'or' was not used. Further, in each case a specific course of action by defendant is charged; neither attempted to charge each and every act denounced by the statute. Thus in Biebusch, the charge was that defendant '* * * did, directly and indirectly, attempt, by bribing, to induce one William M. Polk to absent himself for the purpose of avoiding giving evidence in a certain cause * * * then pending * * *' While in Tummons, it was charged that defendant '* * * did, directly and indirectly, bribe and induce him, the said Sam Burks, the witness aforesaid, to absent himself for the purpose of avoiding giving evidence in the said cause * * *' Neither case in any way indicates that the information in the case at bar is proper.

What we have said requires the reversal of the judgment below. However, under the foregoing authorities it appears that the defendant is not entitled to dismissal but that a remand is proper. We therefore believe that we should consider the other contentions made in defendant's brief.

Defendant contends that she was unlawfully brought to trial in Andrew County because the state failed to prove that the offense was committed in Andrew County and that no proper venue existed in Andrew County. Article I, Section 18, Subparagraph (a), of the Missouri Constitution provides that a defendant is entitled to a 'speedy public trial by an impartial jury of the county.' Section 541.030, pursuant to this constitutional provision, provides: 'Offenses committed against the laws of this state shall be punished in the county in which the offense is committed, except as may be otherwise provided by law.' Defendant relies primarily on the case of State v. Poelker, Mo., 378 S.W.2d 491, wherein the defendant was prosecuted for filing a false state income tax return. He was charged in St. Louis County but the evidence failed to reveal any act of the defendant in the county. The evidence merely showed that the return was received in the revenue office in Jefferson City. Although defendant lived in St. Louis County, no act of preparation or mailing in St. Louis County was shown. The supreme court held that since the evidence did not show that any act was committed in St. Louis County that no venue...