State v. Miles, 52178

• Decision Date: 13 February 1967
• Docket Number: No. 1,No. 52178,52178,1
• Citation: 412 S.W.2d 473
• Parties: STATE of Missouri, Respondent, v. John Sherman MILES, Appellant
• Court: Missouri Supreme Court

Page 473

412 S.W.2d 473

STATE of Missouri, Respondent, v. John Sherman MILES, Appellant.

No. 52178.

Supreme Court of Missouri, Division No. 1.

Feb. 13, 1967.

Motion for Rehearing or to Transfer to Court En Banc Denied

March 13, 1967.

Robert G. Duncan, Pierce, Duncan, Beitling & Shute, Kansas City, for appellant.

Norman H. Anderson, Atty. Gen., Jefferson City, Floyd L. Sperry, Jr., Sp. Asst. Atty. Gen., Clinton, for respondent.

HOUSER, Commissioner.

John Sherman Miles, convicted of 'Stealing over Fifty Dollars' and sentenced to 7 years' confinement, has appealed from the judgment and sentence.

First, he attacks the validity of the information, contending that it is fatally defective; that in order for him to prepare his defense and to afford him due process of law he should have been advised of the specific manner in which he is alleged to have stolen the property; that the information fails to allege the essential elements of the offense; that there is no allegation of a 'taking' or a 'carrying away,' or that he stole the property with the intent to permanently deprive the owner thereof, or to convert it to his or someone else's use; that it fails to allege any other 'manner of stealing,' and fails to notify him of the charge against him.

The information charged one prior offense and that appellant did 'unlawfully, feloniously and intentionally steal certain property, to-wit: one (1) John Deere 1964 Diesel farm tractor, serial number 71238, of the value of Seven Thousand Dollars ($7,000.00), the property of one Tom Effertz, without the consent of the owner thereof * * *.'

This is a charge under § 560.156, ¹ which in one comprehensive section undertakes to deal with all of the various forms of stealing previously interdicted in several statutes. The charge is laid under the first alternative of paragraph 2, which makes it unlawful 'for any person to intentionally steal the property of another, either without his consent or by means of deceit.' Paragraph 1(2) of that section provides that 'Steal' shall mean '* * * to appropriate by exercising dominion 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.'

The information is sufficient. It clearly and specifically charges the offense prohibited by paragraph 2 of § 560.156. No longer is the conventional language 'steal, take and carry away,' approved without further elaboration in State v. Murchie, Mo.Sup., 225 S.W. 954, necessary. Allegations of caption and asportation are not now essential to the validity of an information charging stealing. The word 'steal' when applied to property has a well-defined meaning, '* * * a uniform significance, and in common as well as legal parlance means the felonious taking and carrying away of the personal goods of another.' The American and English Encyclopedia of Law, Vol. 23, p. 555, quoted with approval in State v. Richmond, 228 Mo. 362, 128 S.W. 744, 745. And see State v. Chambers, Iowa Sup., 1849, 2 Green (Iowa) 308. It means 'to take and carry away, feloniously; to take without right or leave, and with intent to keep, wrongfully.' State v. Zammar, Mo.Sup., 305 S.W.2d 441, citing and quoting from State v. Dewitt, 152 Mo. 76, 53 S.W. 429. 'Steal' signifies a taking which at common law would have been denominated felonious, and imports the common-law offense of larceny. State v. Richmond, supra. The intent to wrongfully take and carry away and keep inheres in the word 'steal.' 'In order to find a defendant guilty under (an information charging that defendant did 'steal'), a taking and carrying away must be proved. So under this (information) it was no less necessary to prove a taking and carrying away, than if these words had been inserted in the (information). And the burden of proof was not changed in any particular.' Green v. Commonwealth, Sup.Jud., 111 Mass. 417, l.c. 419. It is not necessary to charge an intent to convert the property to defendant's use or to deprive the owner permanently thereof. State v. Hamlin, Mo.Sup., 171 S.W.2d 714(3); State v. Martin, 357 Mo. 368, 208 S.W.2d 203(1). A charge that defendant 'did intentionally steal' is sufficient and needs no elaboration or further specification as to the mode, method or manner of the larceny. 'It is not necessary that the manner in which the stolen property was taken and carried away should be alleged unless the statute under which the indictment is drawn limits the offense to a particular method.' 52 C.J.S. Larceny § 75. This information, which follows the language of the statute, adequately notified defendant of the nature of the offense with which he was charged. A conviction under this information would bar another prosecution for the same offense.

This case does not come within the qualification to the general rule referred to in State v. Kesterson, Mo.Sup., 403 S.W.2d 606(1), that where 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, the indictment or information must specify the offense with which the defendant is charged; must charge in detail what happened, and affirmatively recite the conduct alleged to constitute stealing. Kesterson was not an ordinary case of stealing property. It involved a specialized form of stealing: stealing by means of deceit. It stands to reason that in charging a special or extraordinary form of the crime, such as stealing by embezzlement, larceny by trick, obtaining money or property by false pretenses, etc., the defendant should be notified by the indictment or information of the nature of the evidence with which he will be confronted, in greater detail than by merely using the words of the statute. In such case the state must allege how or in what manner the stealing was effected by the deceit, trick, false pretense or embezzlement. There is no necessity of detailed specification in charging an ordinary theft of property.

Next, appellant assigns error in refusing to permit the service of a subpoena on the court reporter of another division of the circuit court to compel his appearance as a witness on behalf of the appellant and the production of his shorthand notes for the purpose of impeaching the testimony of the state's principal witness, Delane Long, and that of Long's wife Judy. Long had testified in the other division a week earlier in this same case in a proceeding which resulted in a mistrial. In offering to have the subpoena served appellant's counsel related that from the court reporter's notes he could prove 'numerous contradictions and discrepancies' between the testimony of the Longs given at this trial and that given a week previously. In particular, appellant asserted that through the court reporter he could show (1) that Long previously testified that when the stolen tractor was unloaded in the pasture adjacent to his house, one John Miles (who had assisted in the...