State v. Tevis
| Decision Date | 03 October 1960 |
| Docket Number | No. 23122,23122 |
| Citation | 340 S.W.2d 415 |
| Parties | STATE of Missouri, Respondent, v. Charles TEVIS, III, Appellant. |
| Court | Missouri Court of Appeals |
Crouch & Fitzgerald, Warrensburg, for appellant.
Martin Richardson, Warrensburg, for respondent.
This is an appeal by Charles Tevis, III, from his conviction in the Circuit Court of Johnson County, Missouri, of the misdemeanor crime of careless and reckless driving under Section 304.010, V.A.M.S. (Amended Laws 1957, p. 631, Sec. 1).
On April 30, 1959, the prosecuting attorney of Johnson County filed his information in the Magistrate Court alleging that the defendant had committed the crime of careless and reckless driving. Defendant waived the reading of the information, entered a plea of not guilty and announced ready for trial. The trial to the Magistrate on May 26, 1959, resulted in a finding of guilty with the punishment fixed at a fine of $25 and incarceration for ten months in the county jail.
Defendant appealed to the circuit court and the case was set for trial on July 15 1959. On that date defendant appeared and filed his motion to dismiss on the grounds: '(1) Said information does not state sufficient grounds to charge a crime * * *, (2) That said information is not executed in proper form and is a nullity * * *.' In presenting this motion to the trial court defendant's counsel said,
The original information is not before us but the transcript recites it. According to the transcript the information stated that 'M. Richardson, the duly elected, qualified and acting prosecuting attorney * * * upon his oath of office, and upon his hereunto appended oath, informs the court', etc. The information at its conclusion was signed 'M. Richardson, Prosecuting Attorney.' After his signature there appeared an unsigned affidavit obviously prepared for his signature to be subscribed to and sworn before the magistrate.
We gather that defendant's objection is that the prosecuting attorney after signing his name to the information in which he stated that it was upon his oath of office failed thereafter to execute the attached affidavit to the effect that the matters stated in the information are true to the best of his information and belief. Defendant relies upon Section 545.240 RSMo 1949, V.A.M.S.
Pursuant to the authority granted by Section 5, Article V, of the Constitution of Missouri, V.A.M.S., the Supreme Court in 1952 adopted Rules of Criminal Procedure to govern the procedure in all criminal proceedings in all courts of this state having criminal jurisdiction. These rules govern and determine such procedural questions as the form of and necessity for verification of information in misdemeanor cases. Statutory Section 545.240 no longer governs this subject, and we need not pursue what it required. See State v. Brown, 304 Mo. 78, 262 S.W. 710(5); 19 Mo.L.Rev. 70, Missouri Rules of Criminal Procedure: Their Effect on Statutes.
Supreme Court Rule 24.16, V.A.M.R., provides:
'24.16--Information--Filing--Signature--Verification
(Italics ours.)
The information before us avers that it is filed upon his (prosecuting attorney) official oath, and he has signed it. Under the rule this is sufficient. The fact the rule provides for other permissible methods of verification or support of the information does not affect the sufficiency of the one selected and used by the prosecutor. We find no merit in defendant's first contention. Cf. State v. Brown, supra.
Defendant's second contention is that the information was defective in the allegations of how the defendant operated his motor vehicle in a careless and reckless manner. The information stated that on April 28, 1959, between the hours of 9:30 p. m. and midnight on the city streets of Holden, Missouri, defendant unlawfully drove his truck 'in a careless, reckless and imprudent manner, in that he did not have motor vehicle under proper control, and did and then and there endanger the property and lives and limbs of persons in Johnson County, in that: Between the hours of 9:30 p. m. and midnight on the City Streets of Holden, Missouri, the said Charles Tevis did operate a pickup truck at a high rate of speed, weaving back and forth across the road, running through city stop signs, * * * in violation of Section 304.010 VAMS.'
Supreme Court Rule 24.01 provides: 'The indictment or the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged.' Supreme Court Rule 24.03 provides: 'When an indictment or information alleges the essential facts constituting the offense charged but fails to inform the defendant of the particulars of the offense sufficiently to prepare his defense, the court may direct or permit the filing of a bill of particulars.'
The test of the sufficiency of an information is whether it is (1) in writing, and (2) understandably states the essential facts constituting the offense charged. Necessarily it must contain all the elements of the offense set out in the statute and be a bar to a subsequent prosecution for the same offense. See State v. Sargent, 241 Mo.App. 1085, 256 S.W.2d 265. Describing the offense in the language of the statute, or in words of similar import, is sufficient where the statute states all the ingredients of the offense with legal certainty, but not otherwise. Using the general language of the statute is sufficient only in those instances where the essential facts which constitute the offense are set forth in the statute itself, which declares or creates the offense. State v. Reynolds, Mo.App., 274 S.W.2d 514; State v. Terry, 109 Mo. 601, 19 S.W. 206.
In the instant case the information used some of the language of the statute but such language in and of itself did not reasonably apprise the accused of the particular offense with which he was charged. See State v. Cook, Mo.App., 322 S.W.2d 596; State v. McCloud, Mo.App., 313 S.W.2d 177. However, after generally charging defendant with operating his truck in a careless and reckless manner, the information went on to particularize by saying in that he so did by (1) operating it 'at a high rate of speed', (2) 'weaving back and forth across the road,' and (3) 'running through city stop signs'.
We are of the view that while the information is no model for future use it does contain a sufficient statement of the offense charged as required by Supreme Court Rule 24.01 to withstand a motion to dismiss. Cf., State v. Ball, Mo.App., 171 S.W.2d 787(12); Annotation, Reckless Driving--What Constitutes, 52 A.L.R.2d 1337; Annotation, 115 A.L.R. 357. The information alleged the essential facts constituting the offense charged and if defendant felt it failed to inform him of the particulars of the offense sufficiently to prepare his defense he could have availed himself of the benefit of the provision of Supreme Court Rule 24.03 providing for a bill of particulars.
Appellant suggests the allegation in the information about weaving is an attempt to show a violation of Section 304.015, V.A.M.S., concerning when it is necessary to drive on the right half of the roadway, and that the information is defective for failing to negate the exceptions contained in that section.
The offense of reckless driving is to be distinguished from other offenses created by statutes regulating the operation of automobiles on highways and making violations of their provisions criminal offenses. Where an act in connection with the operation of an automobile, is by statute, made a separate offense for which a punishment is provided, the general rule is that such act, alone, cannot be punished as reckless driving, although in connection with other circumstances or acts it might constitute reckless driving or an element of that offense. Thus, violations of the rules governing traffic on the highways may, under the conditions existing at the time, constitute reckless driving or an element of that offense. See Annotations, Reckless Driving--What Constitutes, 52 A.L.R.2d 1337, 1365, 86 A.L.R. 1274.
The information, reasonably construed, is designed to charge the offense of reckless driving under Section 304.010 to which it specifically refers, and is not designed to charge the separate offense of failing to drive on the right side of the highway in violation of Section 304.015. The allegation of 'weaving back and forth across the road' is to be considered along with the allegations of 'at a high rate of speed, * * * running through city stop...
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