State v. Parkhurst

Citation845 S.W.2d 31
Decision Date18 December 1992
Docket NumberNo. 74597,74597
PartiesSTATE of Missouri, Respondent, v. Gerald Wayne PARKHURST, Appellant.
CourtUnited States State Supreme Court of Missouri

David S. Durbin, Appellate Defender, J. Bryan Allee, Asst. Appellate Defender, Susan L. Hogan, Appellate Defender, Kansas City, for appellant.

William L. Webster, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.

HOLSTEIN, Judge.

A jury convicted defendant Gerald Wayne Parkhurst, and he was sentenced to six months in jail for the unlawful use of a weapon. § 571.030.1(4). 1 Although the issue of the sufficiency of the information was not raised before the trial court, the Missouri Court of Appeals, Western District, reversed the conviction because the information failed to allege that defendant acted "knowingly." This Court granted transfer. Mo. Const. art. V, § 10. The judgment is affirmed.

I.

Section 571.030.1(4) makes it a class D felony to knowingly exhibit in the presence of one or more persons any weapon readily capable of lethal use in an angry or threatening manner.

The information in this case charged that defendant

committed the class D felony of unlawful use of a weapon ... in that on or about the 28th day of July, 1989, in the County of Harrison, State of Missouri, the defendant exhibited in the presence of more than one person a weapon, to wit: a semi-automatic handgun, readily capable of lethal use in an angry or threatening manner.

A careful reader will note that the word "knowingly" does not appear in the information. Nevertheless, defendant waived arraignment and was tried by a jury, convicted, and filed a motion for new trial, all without complaint regarding the information. 2 The first mention of the omission of the word "knowingly" from the information is in the brief on appeal.

Our Statute of Jeofails, § 545.030, long a part of Missouri law, provides:

1. No indictment or information shall be deemed invalid, nor shall the trial, judgment or other proceedings thereon be stayed, arrested or in any manner affected:

....

(18) For any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits.

2. Provided, that nothing herein shall be so construed as to render valid any indictment which does not fully inform the defendant of the offense of which he stands charged.

Rule 23.11 provides: "No indictment or information shall be invalid, nor shall the trial, judgment, or other proceedings thereon be stayed because of any defect therein which does not prejudice the substantial rights of the defendant." Rule 24.04(b)3 states: "The motion [objecting to an indictment or information] shall be made before the plea is entered, but the court may permit it to be made within a reasonable time thereafter."

Notwithstanding the statute and rules noted above, defendant claims that because the word "knowingly" was omitted, his conviction was a nullity, relying on State v. Gilmore, 650 S.W.2d 627 (Mo. banc 1983). In Gilmore, this Court stated that if all elements of an offense are not alleged, they will not be supplied by intendment or implication. This Court also relied on a second rule that if an indictment or information is insufficient, the trial court acquires no jurisdiction. See also State v. Brooks, 507 S.W.2d 375, 376 (Mo.1974). The Court in Gilmore concluded that failure to allege that the crime was committed "deliberately" deprived the trial court of any jurisdiction, nullifying a conviction of capital murder under § 565.001, RSMo 1978 (now repealed). 650 S.W.2d at 628-29.

The rule that elements of a crime will not be supplied by intendment or implication is rooted in the common law. Strict technical rules of pleading were developed under the common law due in large part to the fact that all felonies were punishable by death and accompanied by the collateral consequences of attainder, forfeiture of property, and corruption of blood. State v. Stringer, 357 Mo. 978, 211 S.W.2d 925, 928 (Mo.1948). In addition, modern rules of disclosure in criminal cases have reduced the need for much of the detail required in common law indictments. The reasons for the technical common law rules of pleading have ceased to exist and have been supplanted by the statute and rules noted above. Nevertheless, the courts of this state have been reluctant to depart from the rigorous common law rules. "It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past." Holmes, The Path of the Law, 10 Harvard L.Rev. 457, 469 (1897).

Some movement toward a more reasoned approach has been established in our caselaw. For example, State v. Stringer, supra, noted that § 545.030 was specifically designed to do away with the technicalities of the common law. There the Court suggested that the "no intendment or implication" rule should be limited to those allegations "necessary to inform the defendant of the nature and cause of the accusation." 211 S.W.2d at 929.

This suggestion of a more liberal construction of an indictment or information at least in post-conviction challenges, was carried a step further in DeLuca v. State, 465 S.W.2d 609 (Mo.1971). There an information failed to identify the owner of property alleged to be stolen. The Court stated:

Persons of reasonable intelligence reading this information would recognize the offense which it charged. The basic purpose of an indictment or information is to inform the defendant of the charges against him ... Avoidance of a second charge for the same offense is frequently stated as a reason for the rule that constituent elements of the offense may not be supplied by intendment.

....

This construction of the information is not prejudicial to appellant who went to trial upon it without question. He was adequately informed of the charge and is not subject to a second trial for the same offense ... [A] retrial of defendant under an information charging that he stole property of [the victim] would afford appellant no right or defense which was not possible under the information under review.

465 S.W.2d at 612-13.

In reaching its conclusion, the DeLuca court relied on Palomino v. United States, 318 F.2d 613, 616 (9th Cir.), cert. denied, 375 U.S. 932, 84 S.Ct. 335, 11 L.Ed.2d 264 (1963), for the federal rule that an indictment that is not timely challenged will not be held insufficient "unless it is so obviously defected that by no reasonable construction can it be said to charge the offense for which the conviction was had." See also United States v. Watkins, 709 F.2d 475, 478 (7th Cir.1983) (holding that omission of the word "knowingly" from an indictment not challenged until after trial was not a fatal defect); United States v. Lucas, 932 F.2d 1210, 1218 (8th Cir.), cert. denied, 502 U.S. 869, 112 S.Ct. 199, 116 L.Ed.2d 159 (1991); United States v. Wilson, 884 F.2d 174, 179 (5th Cir.1989); United States v. Phillips, 869 F.2d 1361, 1365 (10th Cir.1988), cert. denied, 490 U.S. 1069, 109 S.Ct. 2074, 104 L.Ed.2d 638 (1989); United States v. Previte, 648 F.2d 73, 80 (1st Cir.1981). At least two districts of the court of appeals have followed the rule laid down in DeLuca: Ward v. State, 793 S.W.2d 637, 641 (Mo.App.S.D.1990); Puckett v. State, 782 S.W.2d 454, 455 (Mo.App.E.D.1990). While not relying on DeLuca, the Missouri Court of Appeals, Western District, reached essentially the same result in State v. Nash, 621 S.W.2d 319 (Mo.App.1981). There the court held that omission of the word "knowingly" from an indictment for first degree burglary was not a fatal defect because the indictment referred to the correct statutory section and the language "clearly implies that the entry was [made] knowingly." Id. at 324.

While this Court in Gilmore acknowledged the purposes of a criminal indictment or information, it failed to analyze that information under the standard enunciated in DeLuca or under the more liberal construction of indictments or informations afforded under § 545.030 or Rule 23.11. Specifically, the Court in Gilmore did not examine the information to determine if it was sufficient to inform the defendant of the offense charged so that he would not be prejudiced by being unable to prepare a defense or unable to raise the defense of double jeopardy. In addition, the Court did not examine the information to see if it was so defective that it did not by any reasonable construction charge the defendant with the offense with which he was convicted. That case also failed to consider the effect of Rule 24.04(b) requiring a timely challenge to the charge. Because State v. Gilmore and the case upon which it was based, State v. Brooks, did not apply the proper analysis to post-verdict claims of an insufficient information or indictment, they were wrongly decided. To the extent of any conflict with this case, they are overruled.

In addition, both Brooks and Gilmore mistakenly relied on the confusing statement of law found in a number of cases that if an indictment is insufficient, the trial court acquires no jurisdiction of the subject matter. See Montgomery v. State, 454 S.W.2d 571, 575 (Mo.1970). Subject matter jurisdiction of the circuit court and the sufficiency of the information or indictment are two distinct concepts. The blending of those concepts serves only to confuse the issue to be determined. Circuit courts obviously have subject matter jurisdiction to try crimes, including the felony of unlawful use of weapons. Mo. Const. art. V, § 14(a). At the same time, a person cannot be convicted of a crime with which the person was not charged unless it is a lesser included offense of a charged offense. Montgomery, 454 S.W.2d at 574-75. Cases stating that...

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