State v. Puckett, 41910.

• Decision Date: 30 September 1980
• Docket Number: No. 41910.,41910.
• Citation: 607 S.W.2d 774
• Parties: STATE of Missouri, Respondent, v. Tom PUCKETT, Appellant.
• Court: Missouri Court of Appeals

607 S.W.2d 774

STATE of Missouri, Respondent, v. Tom PUCKETT, Appellant.

No. 41910.

Missouri Court of Appeals, Eastern District, Division Three.

September 30, 1980.

Ronald E. Pedigo, Public Defender, Farmington, for appellant.

John Ashcroft, Atty. Gen., Paul Robert Otto, Steven W. Garrett, Asst. Attys. Gen., Jefferson City, Gary Stevenson, Pros. Atty., Farmington, for respondent.

CRIST, Judge.

Defendant has appealed his jury conviction and subsequent three year sentence for stealing over $50.00. Section 560.156, RSMo. 1969. We affirm.

On Appeal, defendant has alleged three points of error, to-wit: (1) That the information under which he was charged was fatally defective because it failed to specify whether he was charged with stealing "without the consent of the owner" or "by means of deceit," and thus did not adequately apprise him of the fundamental particulars of the crime so as to enable him to prepare a defense; (2) that there existed a fatal variance between the "improper" information noted above and the verdict director instruction which instruction did, in fact, refer to his having stolen the property in question without the consent of the owner; and (3) that the evidence was insufficient as a matter of law to establish defendant's guilt.

Defendant's first contention is somewhat duplicitous in that it alleges the information was both fatally defective and imperfectly drafted. There exists a definite distinction between these two concepts as it is quite possible for an "imperfect" information to fall far short of the "fatally defective" standard. However, the converse is never true.

Stripped of its verbiage, the information at issue reads thus:

Defendant did ... appropriate ..., in a manner inconsistent with the rights of the owner ... by taking the property....

Now, "fatally defective" conceives that the trial court lacked jurisdiction to proceed inasmuch as the information or indictment failed to allege facts which would actually comprise a crime. Paxton v. State, 565 S.W.2d 750 (Mo.App.1978). Hence, no crime equals no jurisdiction to proceed. On the other hand, the term "imperfect" contemplates an information wherein a crime has been alleged but which lacks certain fundamental particulars necessary to a proper understanding of the charge. This latter consideration is important as it primarily relates to a defendant's ability to prepare a defense. State v. Newhart, 503 S.W.2d 62 (Mo.App.1973). Thus, it must appear that the "imperfection(s)" hampered the defendant's ability to comprehend the charge and prepare his defense.

Application of the foregoing precepts to the information at issue reveals that "fatally defective" is hardly the appropriate or applicable term as the information does, in fact, allege a crime, and essentially recites the statutory language verbatim. Section 560.156.1(2), RSMo. 1969. However, it does fail to specify with precise language whether the stealing was perpetrated "by deceit" or "without consent," the two recognized means by which the crime may be committed. Section 560.156.2, RSMo. 1969. This omission necessitates a determination of whether defendant suffered a resultant inability to understand the nature of the charge. We now attempt to trace a line of cases which bear a marked resemblance to that now at hand and which are illustrative of the issue we need resolve.

State v. Zammar, 305 S.W.2d 441 (Mo. 1957), held that an indictment which did not, "in express terms state that the act of stealing was committed either without the owner's consent or by means of deceit," but which charged that defendant, "did steal, take and carry away property," obviously described a stealing without the consent of the owner. Thus, the Zammar Court disallowed the defendant's challenge that the indictment was insufficient. Zammar, supra at 445-446.

State v. Kesterson, 403 S.W.2d 606 (Mo. 1966), involved an information which specifically charged a defendant with stealing by deceit but which failed to recite the misrepresentations the defendant made to her victim. The court held the information insufficient for it did not allege the nature of the deceit nor did it allege the misrepresentations upon which the victim relied. State v. Londe, 557 S.W.2d 6 (Mo.App.1977) draws a similar conclusion.

State v. White, 431 S.W.2d 182 (Mo.1968) dealt with an information which alleged that defendant, "did embezzle, steal, take and carry away, by deceit money with the intent to convert the same to his own use and deprive the owner of the use thereof..." (Emphasis added.) The court concluded, logically, that the information did not sufficiently allege a felonious stealing without the owner's consent and was misleading in that it was, "an attempt to charge a stealing by deceit, although inadequately." White, supra at 185. Inadequate, presumably, because it failed to express the misrepresentation such a charge would require.

State v. Newhart, supra, reversed a defendant's conviction under this statute where the indictment merely alleged that defendant did, "unlawfully, and willfully, and feloniously steal, or use, or transfer property in a manner inconsistent with the rights of the owner ... while acting as a bailee thereof ...," (Emphasis added.) supra at 67. The Newhart Court concluded that the information did not make it clear whether the property was obtained by defendant having made misrepresentations to the owner (by deceit) or whether he lawfully obtained possession of the property and later kept it without the owner's permission (without consent).

These cases leave this court with the distinct impression that an information is not to be deemed insufficient merely because it omitted the statutory language, "without consent of the owner," unless said omission results in the inability of a defendant to discern the nature of the charge. Zammar, supra, remains the case most nearly on point and we are constrained to adhere to its logic.

Inasmuch as the information now at issue described no misrepresentations (which would imply deceit), and referred to defendant having "appropriated ... by taking," the only interpretation to which it...