State v. Simone

• Decision Date: 12 June 1967
• Docket Number: No. 52497,No. 2,52497,2
• Citation: 416 S.W.2d 96
• Court: Missouri Supreme Court
• Parties: STATE of Missouri, Respondent, v. Phillip Anthony SIMONE, Appellant

Page 96

416 S.W.2d 96

STATE of Missouri, Respondent, v. Phillip Anthony SIMONE, Appellant.

No. 52497.

Supreme Court of Missouri, Division No. 2.

June 12, 1967.

Motion for Rehearing or for Transfer to Court en Banc Denied

July 10, 1967.

Norman H. Anderson, Atty. Gen., Jefferson City, Eugene E. Reeves, Sp. Asst. Atty. Gen., Caruthersville, for respondent.

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

STOCKARD, Commissioner.

Defendant was found guilty by a jury of receiving stolen property in violation of § 560.270 RSMo 1959, V.A.M.S., and sentenced to two years imprisonment. He has appealed from the ensuing judgment.

Section 560.270 provides that every person who shall 'buy, or in any way receive, with intent to defraud, any property that shall have been stolen from another, knowing the same to have been stolen, shall, upon conviction, be punished in the same manner and to the same extent as for the stealing of the property so bought or received.' The indictment in this case, stripped of its formal matters, charged that the defendant on August 23, 1963, 'did then and there unlawfully, knowingly and feloniously buy and receive, with intent to defraud Albert Price Cordier' certain property therein described all of the value of $50, 'knowing the same property had been stolen.'

Defendant asserts that the indictment is fatally defective in that it 'failed to allege the ownership of the property, and failed to allege that the property was in fact stolen, or that it was stolen by someone else.'

Criminal Rule 24.01, V.A.M.R., provides, in part, that '(t)he indictment * * * shall be a plain, concise and definite written statement of the essential facts constituting the offense charged. * * * It need not contain a formal commencement, a formal conclusion or any other matter not necessary to such statement.' The purpose of these requirements has been thus 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; 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 substance should be left to intendment or implication. State v. Stringer, 357 Mo. 978, 211 S.W.2d 925, 929. Where a statute defines the criminal offense and sets forth all of its elements, the better practice is for the indictment to follow the language of the statute, but an indictment will not be held insufficient for failure to do so if words of similar import are employed. State v. Harris, Mo., 313 S.W.2d 664, 669, State v. Carter, Mo., 64 S.W.2d 687, 688. The indictment in this case is inartfully drawn in that it does not follow the language of Section 560.270. However, poor draftsmanship alone does not necessarily result in an indictment being fatally defective.

The ownership of the property previously stolen and received by the accused is not made an element of the offense defined in Section 560.270. It may be that evidence of ownership will established proof of some essential element, but, an allegation of ownership is not essential to a charge by indictment of this statutory offense when the indictment otherwise sufficiently describes the property, which it did in this case. Sterling v. United States, 9 Cir., 333 F.2d 443, certiorari denied 379 U.S. 933, 85 S.Ct. 333, 13 L.Ed.2d 344; State v. Peters, 146 Mont. 188, 405 P.2d 642.

We cannot agree that the words used in the indictment did not charge that the property was stolen by someone other than defendant. The indictment charged that defendant knew the property had been stolen when he received it; not that he believed it had been stolen. Accepting as true this statement, the allegation sufficiently states that the property was stolen because if it had not been stolen defendant could not have known that it was. Also the indictment charged that defendant received the property with intent to defraud Albert Price Cordier. Therefore, defendant could not have received property that was his own while entertaining that intent. Also, the allegation that at the time defendant received the property it had previously been stolen precluded the defendant as the one who was thief. Defendant could not have received it from himself, and this was a sufficient allegation that it had been stolen by someone other than defendant.

As previously stated, this indictment was inartfully drawn. In fact its drafting implies carelessness. If would have been subject to a bill of particulars pursuant to Criminal Rule 24.03. But, the fact that an indictment may be subject to a bill of particulars does not necessarily mean that it is constitutionally defective. Taylor v. United States, D.C., 224 F.Supp. 82. Defendant never asked for a bill of particulars and never challenged the indictment for any reason. He obviously was never misled as to the precise charge made against him, and by reason of the language of the indictment he was in no way hampered in the preparation of his defense. We rule the indictment was sufficient.

Defendant asserts that his motion to suppress evidence was erroneously overruled in that 'the search warrant was issued for the search of premises other than those searched and it was illegally changed to the address of the premises searched without the filing of a complaint or the taking of testimony.' He also asserts that the court erred in admitting in evidence items seized under authority of the search warrant which were not mentioned therein.

Prior to the trial of this case defendant filed a motion to suppress evidence 'taken from the person and/or home of the defendant' on the following grounds: (1) the search and seizure 'were made without warrant and without other lawful authority;' (2) the search warrant 'which was in fact used' was not 'for the property from which the merchandise was taken and the later search warrant was not supported by information by a reliable informant;' (3) the arrest of defendant was illegal; and (4) 'the search and seizure violated' defendant's constitutional rights. The search warrant was issued by a magistrate upon complaint of police officer Phil Ratcliff. The place authorized to be searched was described in the warrant as 'a one-story brick building with basement located at 3705 St. John, Kansas City, Jackson County, Missouri.' The building intended to be described was located at 3703 St. John, and the evidence is not clear whether the description used in the warrant was a typographical error or whether the police officer mistakenly so described the building. In any event before any service was attempted the warrant was returned to the magistrate who changed the address to 3703 St. John, and the warrant was then served and the premises were searched. According to the return and inventory on the back of the warrant five items, consisting of three television sets, a tape recorder and a movie camera, were seized. Defendant now contends that some of these items were not described in the search warrant, but this contention was not mentioned in the motion to suppress. At the trial of this case two of the television sets, the tape recorder, and the movie camera, all of which had been seized by the police officers at 3703 St. John, were marked as State Exhibits 1 to 4 inclusive and identified by Albert Price Cordier as items of property belonging to him which had been stolen from his home on August 23, 1965, the day previous to the seizure. The third television set was not identified at the trial or offered in evidence. The following then occurred:

'Mr. Waterman (assistant prosecuting attorney): I move at this time to introduce in evidence State's Exhibits Numbers 1, 2, 3 and 4.

'Mr. Pierce (defense counsel): No objection.

'The Court: Will be admitted.'

It has long been the rule in this state that evidence unlawfully seized by police officers is not admissible in evidence in a criminal case. Criminal Rule 33.03, V.A.M.R.; State v. Hunt, Mo., 280 S.W.2d 37; State v. Spica, Mo., 389 S.W.2d 35, 43. Whether evidence has been unlawfully seized is a question properly to be determined on a motion to suppress evidence. State v. Owens, 302 Mo. 348, 259 S.W. 100, 32 A.L.R. 383; State v. Hepperman, 349 Mo. 681, 162 S.W.2d 878; State v. Lord, Mo. 286 S.W.2d 737, 740. In the event the trial court rules on the motion to suppress adversely to defendant's position, and if the evidence claimed to have been unlawfully seized is subsequently offered in evidence at the trial, defendant must then object to the admission of the evidence with a proper statement of the reasons for that objection, and also present the matter in his motion for new trial and brief the issue on appeal in order to preserve issue for appellate review. See State v. Hepperman, supra, State v. Lord, supra. The purpose of the motion to suppress evidence is to determine as a matter of law whether the items alleged to have been unlawfully seized are inadmissible in evidence for that reason. Unlawfully seized items never offered and received in evidence cannot form the basis for invalidating a criminal trial, and neither can the admission in evidence of items, even though unlawfully seized, when defendant states that he has no objection to the admission in evidence of the items. See State v. Holbert, Mo., 416 S.W.2d 129. See also State v. Hepperman, supra; State v. Lord, supra; State v. Egan, Mo.App., 272 S.W.2d 719, 723. This is the rule generally in other states. In Chandler v. State, 89 Ind.App. 304, 166 N.E. 289, the defendant's motion to quash the...