State v. Tierney

• Decision Date: 11 June 1979
• Docket Number: No. KCD,KCD
• Citation: 584 S.W.2d 618
• Parties: STATE of Missouri, Respondent, v. Timothy R. TIERNEY, Appellant. 29867.
• Court: Missouri Court of Appeals

Page 618

584 S.W.2d 618

STATE of Missouri, Respondent, v. Timothy R. TIERNEY, Appellant.

No. KCD 29867.

Missouri Court of Appeals, Western District.

June 11, 1979.

Motion for Rehearing and/or Transfer to Supreme Court Denied

July 12, 1979.

Allan J. Fanning, Kansas City, for appellant.

John D. Ashcroft, Atty. Gen., John M. Morris, III, Asst. Atty. Gen., Jefferson City, for respondent.

Before SHANGLER, P. J., and WASSERSTROM and CLARK, JJ.

SHANGLER, Presiding Judge.

The defendant was convicted by a jury of the sale of methamphetamine, a Schedule II controlled substance, and was sentenced by the court to eight years imprisonment as a second offender.

On appeal, the defendant contends the conviction was without jurisdiction because the information was neither on the oath of the prosecutor nor with citation of the section of the statute which proscribes the conduct charged against him. The defendant admits these objections were not made at the trial, nor after the trial on motion, but contends nevertheless that the information, so truncated, does not charge an offense and thus vests no jurisdiction to adjudicate a conviction.

The prosecution was conducted on an amended information signed by an assistant prosecutor, rather than by the prosecutor, as provided by Rules 24.01 and 24.16. The term Prosecutor as used in the Rules of Criminal Procedure, however, by the very terms of Rule 36.05 includes an Assistant prosecutor for the reason, no doubt, that the office commands from both the same qualifications and the same duty. Sections 56.151 (Laws of 1973), 56.180, 56.200, 56.240, 56.550, RSMo 1969. The signature of the assistant prosecutor on the information brought against the defendant was as if done by the prosecutor. State v. Falbo, 333 S.W.2d 279, 284(2, 3) (Mo.1960).

The defendant contends, however, that the information was invalid as an accusation because the face did not recite "the section of the Revised Statutes of Missouri which proscribes the conduct charged (and) the section of the statutes which fixes the penalty or punishment therefor" which Rule 24.01(a) prescribes the formal charge Shall contain. And, indeed, the information contains § 195.200, RSMo 1969, which fixes the penalty for sale of a Schedule II controlled substance but not § 195.020, RSMo 1969, which defines the conduct subject to offense. The defendant does not contend this lapse was error merely (as he may not in the absence of objection at the trial) but that the defect renders the information null as a formal accusation of offense. An information which fails to charge a crime does not empower a court to proceed, cannot support an adjudication of criminal sanction, and the want of jurisdiction is not aided by the verdict but may be raised for the first time on appeal. Rule 28.02; State v. Johnson, 548 S.W.2d 245, 247(1) (Mo.App.1977). An information stated so as to enable the defendant to meet the charge and to bar further prosecution for the same offense, however, is valid against objection. State v. Tandy, 401 S.W.2d 409, 412(2-4) (Mo.1966).

The elements for a valid information are given in Rule 24.01. The declared rule, prior to amendment on January 1, 1977, was:

The indictment or the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged. It shall be signed by the prosecuting attorney, and the indictment shall also be signed by the foreman of the grand jury. (It need not contain a formal commencement, a formal conclusion or any other matter not necessary to such statement.) Allegations made in one count may be incorporated by reference in another count.

The amended rule rescripts as paragraph (A ) the original except that the portion in brackets is displaced by the provisions that

It shall also contain on the face thereof the section of the Revised Statutes of Missouri which proscribes the conduct charged, the section of the statutes which fixes the penalty or punishment therefor, and the name and degree, if any, of the offense.

The amended rule adds paragraph (b) that

All indictments or informations which are substantially consistent with the forms of indictments and informations which have been or will be approved by this court shall be deemed to comply with the requirements of rule 24.01(a).

Rule 24.01(b) contemplates the promulgation of forms of informations by the Supreme Court of Missouri to suit the given offense and, in fact, Missouri Approved Charges Criminal (MACH-CR) 32.08 frames an accusation for the sale of a Schedule II Controlled Substance under § 195.020, RSMo 1969. The official form MACH-CR 32.08, consonant with the requirement of Rule 24.01(a), charges the essential elements of the offense in the terms of the statute and the recitations that the conduct of the defendant violated § 195.020, RSMo 1969, and was punishable upon conviction under § 195.200.1(4), RSMo 1969. The information brought against the defendant lacked any reference to § 195.020 which subjects the sale of methamphetamine to criminal sanction. The prosecution of the defendant, however, was during the interval between the currency of amended Rule 24.01 and the adoption of MACH-CR 32.08 so that the model information adopted thereafter becomes only advisory as to the form amended Rule 24.01(a) intended for sufficient compliance. It is within this perspective that we consider the contention of the defendant that failure of the formal charge to inform that the conduct alleged against him violated the specific statute was essential to an adjudication of conviction.

The advent of the Criminal Code of 1979 was a renovation of the law of crimes enacted to facilitate the administration of justice. To aid this significant public purpose, the Missouri Supreme Court adopted revised criminal instructions as well as new forms for indictments and informations conformable to the content of the code. These coordinate, but separate, implements were made to coincide with the day the new Criminal Code became effective, January 1, 1979. ¹ The difference between them is (other than that of function) that while the MAI-CR forms are required for use, MACH-CR are not. The use of MACH-CR "is recommended by the Court," but Rule 24 of Criminal Procedure and the cases which decide those provisions continue to govern the validity of indictments and informations. MACH-CR 1.00, Supplemental Notes on Use (2).

MACH-CR subserves the administration of criminal justice by the promulgation of forms, for the most part in the language of the criminal statute, but individuated when the statute defines an offense in generic terms, designed to inform the defendant of the nature and cause of the accusation with sufficient definition for defense and so as not to put twice the defendant in jeopardy for the same offense. MACH-CR, How To Use This Book; United States Constitution, Sixth Amendment; Missouri Constitution, Art. I, § 18(a); State v. Kesterson, 403 S.W.2d 606, 609(1) (Mo.1966); State v. Tandy, supra, l.c. 412(2-4). MACH-CR, in other words, is designed to avoid error and hence to facilitate conclusive dispositions of criminal prosecutions. It is for this reason that Rule 24.01(b) provides that an information substantially consistent with MACH-CR shall be deemed to comply with the requirements of Rule 24.01(a) for the form, signature and contents of an indictment or information.

There is no contention by the defendant that the information does not charge the essential elements of offense under § 195.020 so as to leave doubt as to what to defend against or so as not to preclude a subsequent prosecution for the same conduct. The defendant complains only that the information does not cite § 195.020 which proscribes the conduct charged against him nor § 556.280 to allow punishment as a second offender, in violation of Rule 24.01(a). The Second Offender Act does not charge an offense or fix a penalty but acts only to take the punishment away from the jury to the judge. State v. Pulis, 579 S.W.2d 395 (Mo.App.1979, S.D.). It is evident that whatever consequence those lapses may entail, they do not invalidate the conviction for want of a sufficient statement of charge nor affect jurisdiction. It is evident also, that whatever error may have resulted was waived by failure to object and preserve the question for review on appeal.

The defendant next contends that the information was insufficient to invoke the Second Offender Act (and imposition of sentence by the court rather than the jury) because that statute applies to a person previously convicted of an offense punishable by imprisonment in the penitentiary who was sentenced and subsequently placed on probation, on parole, fined or Imprisoned, whereas the information merely alleges that the defendant was Received by the Department of Corrections. That allegation clearly implies that the defendant was imprisoned upon conviction and is sufficient for Second Offender Act jurisdiction. State v. Ellifrits, 459 S.W.2d 293, 296(1) (Mo. banc 1970). On this issue the defendant contends also that the amendment of the information at the close of the prosecution evidence to allege the prior conviction in Clay County, rather than in Jackson County as originally pleaded, prejudiced the defense. The claim of prejudice is that the defendant was denied opportunity to discover the Clay County record of conviction, presumably to contradict at the trial the Jackson County allegation of prior conviction. The defendant of course was not deterred from discovery of the Jackson County misallegation by an inquiry, formal or informal, which would have certainly disclosed the error. It is, in any event, a formal nonprejudicial defect of the kind cured by jeofails. Rule 24.11 (thirteenth part); State v. Garner, 538 S.W.2d 937, 941(3) (Mo.App.1976).

The defendant contends next that the admission into evidence of the two exhibits to prove prior conviction was prejudicial as plain...