State v. St. John, 59653

• Decision Date: 13 December 1976
• Docket Number: No. 59653,59653
• Citation: 544 S.W.2d 5
• Parties: STATE of Missouri, Respondent, v. James Franklin ST. JOHN, Appellant.
• Court: Missouri Supreme Court

Page 5

544 S.W.2d 5

STATE of Missouri, Respondent, v. James Franklin ST. JOHN, Appellant.

No. 59653.

Supreme Court of Missouri, en banc.

Dec. 13, 1976.

Jon M. Krebbs, Asst. Public Defender, 7th Judicial Circuit, Liberty, for appellant.

John C. Danforth, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, for respondent.

MORGAN, Judge.

Respondent's application to transfer this cause from the Kansas City District of the Court of Appeals having been sustained, we consider the same 'as on original appeal.' Mo.Const. Art. 5, Sec. 10.

Appellant was convicted of obtaining a controlled substance in violation of § 195.250, RSMo 1969, which provides that: 'It is unlawful for any person to obtain or attempt to obtain any controlled substance listed in Schedules III, IV or V or procure or attempt to procure the administration of the drug by the following means: (1) Fraud, deceit, misrepresentation, or subterfuge; or (2) The forgery or alteration of the prescription or of any written order; or (3) The concealment of a material fact; or (4) The use of a false name or the giving of a false address.'

At trial the evidence established that appellant had obtained sixty amphetaminetype tablets (controlled substance) from a licensed druggist by presenting a prescription made out to a non-existent person and bearing the forged signature of a local physician. The prosecuting attorney apparently concluded that evidence was lacking to prove appellant guilty of forging the prescription and proceeded under the first statutory alternative, i.e., obtaining drugs by deceit. For instance, argument was made to the jury that: 'The crime is obtaining drugs by deceit, by the use of a forged prescription, not that he forged it, but that it was forged and that he used it.' The verdict directing instruction was predicated on a finding of deceit; and, the jury returned a verdict specifically finding that appellant obtained a 'controlled substance by deceit.'

The information reads, in part: '(O)n or about the 17th day of April A.D., 1974, at the County of Clay, in the State of Missouri, one James Franklin St. John did then and there wilfully (,) feloniously and knowingly obtain from Robert Fawks, a quantity of preludin endurets containing Phenmetrazine, a Schedule III controlled substance, by presenting and requesting the filling of a forged prescription purporting to bear the signature of Hill Thurman, M.D., a physician, against the peace and dignity of the State.'

Before this court, appellant challenges the sufficiency of the information by submitting that it is predicated on 'deceit' but fails to allege the presence of a necessary element thereof, i.e., 'reliance' on the part of the party deceived. Rule 28.02 provides that: 'Allegations of error respecting the sufficiency of the information shall be considered upon an appeal although not raised in the trial court or preserved for review.'

Appellant relies primarily on State v. Kesterson, 403 S.W.2d 606 (Mo.1966), wherein this court considered the significance of the term 'deceit' in the then new stealing statute (§ 560.156) as it affected the alleged insufficiency of an information purporting to charge a violation thereof. The statute, in part, declares it to 'be unlawful for any person to intentionally steal the property of another, either without his consent or by means of deceit.' The information therein alleged that the defendant (Kesterson) did '. . . intentionally steal, by means of deceit certain property . . .' In rejecting the same, the court recognized (l.c. 609) that generally an information is sufficient if it charges the offense in the language of the statute, but that it is not if the statute creating the offense uses generic terms and 'does not individuate the offense with such particularity' as to fully advise the accused of what he is to defend against. Thereafter, l.c. 610--611, the court said:

Not only does defendant claim that the information did not allege what the deceit was, but she also complains that it did not recite that the victim relied thereon. Such a recital was necessary in informations under the predecessor statute, § 561.370, involving false representations. State v. Norman, Mo., 232 S.W. 452. Such allegations also are required under the so-called confidence game statute, § 561.450. State v. Stegall, Mo., 353 S.W.2d 656; State v. Cunningham, Mo., 380 S.W.2d 401. The reasoning which required that the state allege in the information and prove that the victim relied on the misrepresentation in cases under §§ 561.450 and 561.370 also is applicable to charges of stealing by deceit under § 560.156. Unless the victim does rely on the conduct which constitutes the deceit, the stealing is not accomplished by deceit and the offense is not proved.

We hold that § 560.156, in describing the offense of theft by deceit, does use generic terms and that it is necessary that indictments or informations thereunder recite sufficiently the conduct constituting a theft by deceit with which a defendant is charged as to notify him as to the charge against which he must defend himself and likewise be sufficient to bar further prosecution for the same offense. We also hold that the information must charge that the victim relied on the misrepresentations with which defendant is charged. The information herein did neither.

See also State v. Cantrell, 403 S.W.2d 647 (Mo.1966), where further consideration was given to the required pleading of the essential and constituent element of a crime.

In response, the state concedes that the statute (§ 195.250) delineates several different means of violating the same by the use of generic as well as non-generic terms; but, then suggests that it is illogical and unwarranted to hold that 'reliance' is necessarily and element of prosecution under subsection (1) of § 195.250 primarily because the druggist is not a 'victim' in the sense of one parting with property because of the deceit of another. Under § 560.156 and related statutes, it is true that the 'reliance' required is that of a 'victim.' Argument is made that the purpose of § 560.156 is to prevent individuals from parting with their property because of the deceit or misrepresentations of another party, but that the purpose of § 195.250 is not to control the defrauding or deceit of druggists or pharmacists but rather to prohibit the misuse of narcotic drugs.

Thus, an interesting question is posed, i.e., is it impossible to prosecute a person under subsection (1) of § 195.250 for obtaining a controlled substance by 'deceit' because there is no 'victim' to provide a 'reliance' thereon? Resolution of an answer to the question posed is made easier if we note how the 'reliance' issue has been disposed of under similar charges based on statutes comparable to other subsections of § 195.250. In 28 C.J.S. Supplement Drugs and Narcotics § 152, it is said: 'a. In a number of...