State v. Stavricos
| Decision Date | 06 February 1974 |
| Docket Number | No. 9421,9421 |
| Citation | 506 S.W.2d 51 |
| Parties | STATE of Missouri, Respondent, v. William L. STAVRICOS, Appellant. |
| Court | Missouri Court of Appeals |
John C. Danforth, Atty. Gen., G. Michael O'Neal, Robert Presson, Asst. Attys. Gen., Jefferson City, for respondent.
W. Newell Toalson, James H. Wesley, II, Springfield, for appellant.
After alleging a prior felony conviction, the information charged that defendant, on or about December 4, 1971, 'did . . . wilfully, unlawfully and feloniously, possess (Count I) a derivative of opium, to-wit: morphine sulphate, 1 contrary to Sections 195.020 and 195.017, 4, (1)(a) . . . as amended, (and in Count II) a salt of pethidine, to-wit: Pethidine hydrochloride contrary to Sections 195.020 and 195.017, 4, (2)(n) . . . as amended.' The jury returned separate verdicts finding defendant guilty on both counts. Defendant's new trial motion was overruled and he was sentenced to two concurrent five year terms of imprisonment. He appeals.
Springfield police were summoned to defendant's residence the afternoon of the aforementioned date to investigate the shooting of Danny Bailey. He was found wounded and lying on defendant's front porch. Defendant told the police that Bailey had shot himself with defendant's gun which defendant had hidden in his 'back yard in a bunch of leaves.' While officers were inspecting 'a bullet hole in the house' across the street from defendant's, and during a conversation with the occupant who 'thought (defendant) was the one' that did the shooting, another neighbor advised that defendant had just been seen to enter his house empty-handed and leave by the rear carrying a brown paper sack which he threw over the back fence into a vacant lot before returning to the house and emerging from the front door. The officers went to the vacant lot at the rear of defendant's premises to the place where the sack was purportedly thrown. After a short walk through the weeds in the vacant lot, a brown paper sack was found with a similar sack inside which contained numerous ampoules, bottles, boxes, polyethelene envelopes and plastic bags. In describing the sack in the vacant lot, one officer testified: Defendant was placed under arrest for investigation of felonious assault and advised 'of his rights.' Thereafter when defendant 'was placed in the paddy wagon' he was also placed under 'arrest for possession of narcotics and this was due to the fact that there was . . . what appeared to be narcotics at that time retrieved . . . from just outside the back yard at' defendant's house. Subsequent laboratory analysis showed that the brown paper sacks contained three ampoules of morphine sulfate, described as 'an opium derivative,' and 17 boxes, bottles, bags and envelopes containing pethidine hydrochloride, said to be 'a salt of pethidine' with the common name of 'Demerol.' Evidence of Bailey's shooting and defendant's arrest for felonious assault was not presented to the jury but was included in the testimony given at the hearing on defendant's motion to suppress.
Save for §§ 195.145, 195.150 and 195.180, the General Assembly in s971 repealed §§ 195.010 to 195.270, inclusive, RSMo 1969, and in lieu thereof enacted thirty-six new sections. Laws of Mo.1971 (S.C.S.H.C.S.H.B.69), pp. 237--260. Those parts of new Chapter 195 pertinent herein are: Section 195.010. Section 195.016. 'Nomenclature.--The controlled substances listed or to be listed in the schedules in this act are included by whatever official, common, usual, chemical, or trade name designated.' Section 195.017. Section 195.020. 'Prohibited acts.--It is unlawful for any person to . . . possess, have under his control, . . . any controlled or counterfeit substance except as authorized in this law, or to possess any apparatus, device or instrument for the unauthorized use of any controlled substance.' Section 195.200. Section 195.230.--
I
The substance of the first point in defendant's brief is that Contrary to Rule 84.04(d) V.A.M.R. (Rule 28.18; State v. Warren, 469 S.W.2d 662, 663 (Mo.App.1971)), this point does not advise wherein and why defendant claims the information failed to charge an offense and is, therefore wholly inadequate to preserve anything for appellate review. State v. Tartenaar, 371 S.W.2d 192, 194(1) (Mo.1963). Nevertheless, Rule 28.02 requires us to consider the sufficiency of the information albeit the point was not properly preserved by the brief. State v. White, 431 S.W.2d 182, 186(4) (Mo.1968).
By 'a plain, concise and definite written statement of the essential facts constituting the offense charged' (Rule 24.01), the information charged defendant with wilfully, unlawfully and feloniously possessing (§ 195.020) a derivative of opium, to wit: morphine sulphate (Sec. 195.017--4(1)(a)) and a salt of pethidine, to wit: pethidine hydrochloride (Sec. 195.017--4(2)(n)). Thus, the defendant was informed of the constituent facts necessary to acquaint him with the particular offenses charged. The information followed the language of the stated statutes and is sufficient. State v. Crawford, 251 S.W.2d 76, 77--78(4) (Mo.1952).
Because we are not required to con the argument portion of defendant's brief or the transcript to ascertain the whereins and whys of points that are presented in briefs as mere conclusions (State v. Dennison, 428 S.W.2d 573, 579(8) (Mo.1968)), our doing so in this instance is a pure gratuity. The gist of defendant's argument is that since neither morphine sulphate nor pethidine hydrochloride are listed as controlled substances in the statutes or included in the list of drugs prepared and filed by the division of health per § 195.230, supra, the information is defective. The error in this argument is that any derivative of opium and salts of pethidine are included in the statutory listings as controlled substances that are unlawful to possess. Consequently, the controlled substances here involved were defined by law and their listing by the division of health was not required. State v. Scarlett, 486 S.W.2d 409, 411(3) (Mo.1972). Moreover, it was not amiss that the information included the particular kind of opium derivative and salt of pethidine defendant was charged with possessing to avoid a bill of particulars to disclose the particular substances involved. Rule 24.03.
II
The second point in defendant's brief is: 'The trial court erred in giving instructions numbered 2, 4, 6, 12 and 13, in that, said instructions are contrary to the law of the State of Missouri and are confusing, misleading, and direct the jury to proceed in a manner not in accord with the laws of this state.' Defendant's omission to demonstrate in this point any alleged deficiencies in the enumerated instructions or to state wherein and why they misdirect the jury or are contrary to law, misleading and confusing, all as required by Rule 84.04(d), means that the second point is a nullity insofar as appellate review is required. State v. Nelson, 459 S.W.2d 327, 334(12) (Mo.1970). In spite of the defect in the point, we briefly note instructions 2 and 4 charged the jury that before defendant could be found 'guilty of possession of a controlled substance as charged in Count I (and) Count II of the information,' they had to find that defendant 'wilfully, unlawfully and feloniously' possessed 'a derivative of opium, to-wit: morphine sulphate' and 'a salt of pethidine, to-wit: Pethidine hydrochloride.' In the argument portion of the brief, defendant's complaint is that instructions 2 and 4 fail to require a finding that defendant 'knowingly' possessed these substances and that there was no evidence of defendant's knowledge of the contents of the brown paper sacks. It was not necessary for instructions 2 and 4 to include the words 'knowingly' or 'intentionally' because,...
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