State v. Mace
Decision Date | 11 June 1962 |
Docket Number | No. 49189,No. 1,49189,1 |
Citation | 357 S.W.2d 923 |
Parties | STATE of Missouri, Appellant, v. Robert MACE, Respondent |
Court | Missouri Supreme Court |
Thomas F. Eagleton, Atty. Gen., George D. Chopin, Sp. Asst. Atty. Gen., Jefferson City, for appellant.
Richard W. Mason, St. Joseph, for respondent.
This is an appeal by the State of Missouri from an order quashing an information filed by the Prosecuting Attorney of Buchanan County on May 1, 1961, the charging portion of which was:
'* * * that between the dates of September 1st, 1960 and December 15, 1960, Robert Mace did wilfully and feloniously steal automobile tires of a value in excess of Fifty dollars ($50.00) lawful money of these United States from the General Tire Store at 1700 Frederick Avenue, St. Joseph, Missouri, the property of the General Tire Store of St. Joseph, Inc., a corporation, contrary to the form of the Statutes in such cases made and provided, and against the peace and dignity of the State.'
On May 15, 1961, defendant was arraigned, at which time his counsel orally moved to dismiss the information on grounds it failed to specify the date on which the offense charged was alleged to have been committed. Upon denial of the motion, defendant stood mute, whereupon the court ordered entry of a plea of not guilty, and a pre-trial conference was set for June 12, 1961. On May 29, 1961, defendant, however, filed written motion to quash on grounds the information did not specify the date or dates on which the offense was allegedly committed; that it in effect charged the commission of several offenses without alleging the time and place of each offense so charged; that it was indefinite and uncertain; and that it was, therefore, impossible to defendant such charge or charges. Hearing of that motion was held in abeyance. Thereafter, on June 28, 1961, defendant filed motion to make the information more definite and certain on grounds: (1) 'that plaintiff should be required to state the exact date or dates on which said automobile tires were stolen'; (2) 'that plaintiff should be required to state the number and kind of automobile tires stolen'; and (3) 'that plaintiff should be required to state the specific value of each automobile tire stolen.' Thereafter, on October 23, 1961, the motion to make more definite and certain was sustained and the State was granted 15 days in which to file an amended information. The State failed and refused to comply with that order or attempt in any manner to justify its refusal to do so. On November 10, 1961, the motion to quash, which had been held in abeyance, was sustained, defendant was ordered discharged and the costs were taxed against the State, from which order the State perfected its appeal to this court. See S.Ct. Rule 28.04, V.A.M.R.; State v. Terrell, Mo., 303 S.W. 2d 26.
Defendant does not in this court assert that the information fails to charge him with a criminal offense. It is evident that it does. Sections 560.156, 560.161, RS Mo 1959, V.A.M.S. (to which revision all statutory references are made unless otherwise indicated). But that fact does not dispose of the question here presented: Does the information inform defendant of the particulars of the offense sufficiently to prepare his defense?
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 frauduelent appropriation of the property of another, and in liew 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 reversale of cases based upon technical grounds. But these statutes do not and could not constitutionally do 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.
Does the offense of which defendant is here charged refer to a single act of grand larceny or a series of larcenies (grand or petit), as defined at common law, or does it charge him with one or a series of acts which, in essence, come within the meaning of embezzlement as defined in any of our former statutes? Even the brief of counsel for the State does not attempt to advise the court of the basic elements of the offense or offenses the information here questioned does or may include. It intimates that the crime of defendant as charged is essentially embezzlement. One of the statements in the brief reflects, however, the insufficiency of the information to advise defendant of the nature of the offense with which he is charged. That statement says: 'Therefore, we submit that, whether the instant case involves a situation of 'embezzlement' under the old law or not--the record is not clear on this--the State should certainly not be required to plead more under the new statutes than was requisite under the old.'
The matter is of vital importance to defendant. He, of course, is presumably innocent and is not therefore chargeable with knowledge of the details of the crime with which he is charged. If, for example, the offense of which he, in effect, is charged is embezzlement, as distinguished from common law Larceny, then time may not be the essence of the offense and the total amount 'stolen' by any series of such acts might be taken as the total value of the property taken and subject him to the penalties now prescribed for the 'stealing' of property of a value of more than $50.00. Prior to the changes made in the law in 1955, it was held that the crime of embezzlement may be a continuing offense, as where the accused lawfully came...
To continue reading
Request your trial-
State v. Simone
...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; State v. Mace, Mo., 357 S.W.2d 923. In order to accomplish this purpose the charges of an indictment should be pleaded with definiteness and certainty, and nothing of ......
-
State v. Anderson
...bill is limited to that of informing the defendant of the particulars of the offense sufficiently to prepare his defense.' State v. Mace, Mo.Sup., 357 S.W.2d 923, 926. We have also said that '[t]he motion for a bill of particulars is addressed to the sound discretion of the trial court and ......
-
State v. Blankenship
...313.06 is "[t]o furnish the accused with a description of the charge against him as will enable him to make his defense." State v. Mace, 357 S.W.2d 923, 925 (Mo.1962). The purpose was accomplished here by the separate count charging defendant with robbery. Thus, since defendant was not prej......
-
State v. Barlett, 8410
...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 neith......