State v. Smith, WD

• Decision Date: 09 December 1986
• Docket Number: No. WD,WD
• Citation: 742 S.W.2d 198
• Parties: STATE of Missouri, Respondent, v. Linda SMITH, Appellant. 38174.
• Court: Missouri Court of Appeals

Page 198

742 S.W.2d 198

STATE of Missouri, Respondent, v. Linda SMITH, Appellant.

No. WD 38174.

Missouri Court of Appeals Western District.

Dec. 9, 1986.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Feb. 3, 1987.

Application for Transfer Sustained March 17, 1987.

Case Retransferred Sept. 4, 1987.

Court of Appeals Opinion Readopted Sept. 16, 1987.

Dennis D. Goodden, Public Defender, Columbia, for appellant.

William L. Webster, Atty. Gen., Byrona J. Kincanon, Asst. Atty. Gen., Jefferson City, for respondent.

Before SHANGLER, P.J., and MANFORD and BERREY, JJ.

SHANGLER, Presiding Judge.

The defendant Linda Smith was charged with four separate counts of forgery under § 570.090, RSMo 1978, and convicted by a jury. The court imposed the punishment assessed by the jury--six months in the county jail. The defendant contends on appeal (1) that venue was not proven as to Count IV, and hence no valid conviction was returned on that count, (2) that the information failed to allege as to any count that the defendant acted with the purpose to defraud, and hence an offense was not charged under § 570.090, and the court was without jurisdiction to submit the defendant to trial.

Linda Smith and Sam Bentley met at a bar in Mexico, Missouri, and they entered a social and sexual liaison. It continued for seven months, during which time Bentley helped Ms. Smith with her expenses. He paid her rent, purchased a new automobile for her, and loaned her money to purchase a truck. Ms. Smith had access to his house and car where Bentley kept his blank checks. In August of 1984, four checks were written against the Bentley account with the First National Bank of Mexico, Missouri, numbered 331, 337, 338 and 340, and were cashed at various locations. These checks did not bear the Bentley signature nor did he authorize anyone to sign them. The testimony established that on August 6, 1984 and August 10, 1984, Ms. Smith presented and cashed two of the checks in the drive-in facility at the Callaway Bank. The other two checks were presented and cashed at the Gerbes Grocery Store in Fulton, each on a separate occasion. In a written statement to the police, the defendant Smith admitted that she forged the Bentley signature of the four checks. The confession was received as evidence without objection.

We sustain the contention that the information failed to allege an offense for forgery under § 570.090, RSMo 1978, and hence reverse the convictions on the four counts that pleading charges.

Section 570.090 provides:

1. A person commits the crime of forgery if, with the purpose to defraud, he

(1) Makes, completes, alters or authenticates any writing so that it purports to have been made by another or at another time or place or in a numbered sequence other than was in fact the case or with different terms or by authority of one who did not give such authority; or

(2) Erases, obliterates or destroys any writings; or

(3) Makes or alters anything other than a writing, so that it purports to have a genuineness, antiquity, rarity, ownership or authorship which it does not possess; or

(4) Uses as genuine, or possesses for the purpose of using as genuine, or transfers with the knowledge or belief that it will be used as genuine, any writing or other thing which the actor knows has been made or altered in the manner described in this section.

2. Forgery is a class C felony. (emphasis added)

Thus, forgery may be committed in four different ways, but as to each, the offense is complete only if the conduct was with the purpose to defraud.

The information against Linda Smith as to each--Count I, II, III, and IV--alleges violation in terms of paragraph (4) of the statute: that on the stated date, in the stated venue,

the defendant transferred with knowledge or belief that it would be used as genuine check number [331, 337, 338, 340, respectively] drawn on the account of Sam Bentley at First National Bank of Mexico, Missouri, and that at that time knew that the writing had been made so that it purported to have been made by another, contrary to the form of the statute in such cases made and provided....

The information, as to each count, failed to allege that the conduct was committed with the purpose to defraud. The purpose to defraud is an element of the crime of forgery and must be alleged as well as proven, for a valid conviction. State v. Boley, 565 S.W.2d 828, 831 (Mo.App.1978).

The indictment or information serves to inform a defendant of the nature of the accusation and so to enable the preparation of an adequate defense and to plead former jeopardy if acquitted. State v. Atterberry, 659 S.W.2d 339, 341[1-5] (Mo.App.1983). The first purpose exists to protect the right to due process, and the second, to vouchsafe the subject matter jurisdiction of a court over a pendent prosecution. State v. Gilmore, 650 S.W.2d 627, 628[1, 2] (Mo. banc 1983). A court acquires no jurisdiction to adjudicate under an insufficient information, and a conviction obtained thereunder is a nullity. State v. Brooks, 507 S.W.2d 375, 376[1-3] (Mo.1974). The test of sufficiency is that the information contains all the essential elements of the offense as delineated in the statute and so clearly apprises the defendant of the constituent facts of the offense and so enables a defense. State v. Strickland, 609 S.W.2d 392, 395[7, 8] (Mo. banc 1981). To be sufficient as a charge of forgery under § 570.090, therefore, an information must not only allege that the defendant acted in one of the four manners which constitute the offense under that statute, but also that the conduct was with the purpose to defraud. The information does not accuse that the defendant acted with the purpose to defraud, and hence, on the authority of these precedents, is void for want of the charge of a fact essential to the jurisdiction of the court to adjudicate forgery under § 570.090. State v. Gilmore, 650 S.W.2d at 629[4-6]; State v. Boley, 565 S.W.2d at 831; State v. Charity, 619 S.W.2d 366, 367[1-6] (Mo.App.1981). Accordingly, the conviction and judgment rendered on the information is also void and must be reversed. Charity, 619 S.W.2d at 367[5, 6].

The prosecution argues that the want of averment of the purpose to defraud notwithstanding, each count of the information not only describes the manner in which the forgery was committed, but cites each episode of conduct as a violation of § 570.090.1(4)--and hence, constitutes a sufficient statement of offense under Rule 23.01(b). That criminal procedure prescribes:

The indictment or information shall:

1. State the name of the defendant if known, ...;

2. State plainly, concisely, and definitely the essential facts constituting the offense charged;

3. State the time and place of the offense charged as definitely as can be done;

4. Cite the section of the statutes alleged to have been violated and the section of the statute which fixes the penalty or punishment therefor; and

5. State the name and degree, if any, of the offense charged.

This rule, the prosecutor notes to us, encompasses a component the predecessor versions lacked--that the information "[c]ite the section of the statutes alleged to have been violated." That added component [as the Committee Notes to Rule 23.01 advise] derives from Fed.R.Crim.P. 7(c)(1). The federal decisions, the prosecutor argues, infer the content of the statute from the citation of the...