State v. O'Toole, 41710

• Decision Date: 09 June 1981
• Docket Number: No. 41710,41710
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Horise O'TOOLE, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 804

619 S.W.2d 804

STATE of Missouri, Plaintiff-Respondent, v. Horise O'TOOLE, Defendant-Appellant.

No. 41710.

Missouri Court of Appeals, Eastern District, Division One.

June 9, 1981.

Motion for Rehearing and/or Transfer to Supreme Court Denied

July 10, 1981.

Application to Transfer Denied Sept. 8, 1981.

J. Justin Meehan, St. Louis, for defendant-appellant.

John Ashcroft, Atty. Gen., Paul Robert Otto, Jan Bond, Asst. Attys. Gen., Jefferson City, George A. Peach, III, Circuit Atty., St. Louis, for plaintiff-respondent.

DOWD, Judge.

Defendant-appellant, Horise O'Toole, was charged with first degree (felony) murder and convicted by a jury of second degree murder for the killing of Vernice Weary. He was also charged and convicted of first degree robbery and two counts of kidnapping. Defendant was sentenced to a term of thirty years imprisonment for the murder conviction and ten years sentences for each of the other three convictions, with each of the ten year sentences to run concurrently with each other and with the thirty year sentence.

Vernice Weary had lived with her two teenage sons, Larry and Michael, in the first floor of a home located in the City of St. Louis. In the early morning hours of July 30, 1977, while all three members of the family were home, Larry and Michael were awakened by the sound of gunshots. Shortly thereafter, two men carrying guns entered the boys' bedroom. One of the men was Earl Wilkerson, who the boys had known for several months. Wilkerson had been in the home on prior occasions. The other man was wearing a nylon stocking over his face while in the home. This man later removed the stocking, however, and both Larry and Michael subsequently identified defendant as the man who accompanied Wilkerson on this morning.

The men ordered Larry and Michael to get dressed. Wilkerson left the room briefly and returned with Vernice Weary's purse. Defendant told Michael to get all the money and the car keys from the purse. Michael gave him the $30.00 that was inside the purse, but the car keys were not there. Wilkerson again left the room and returned shortly thereafter with the keys. Michael was then told to unlock the door to a third bedroom where a television and stereo component were kept. Initially defendant told the boys to bring the television and stereo, but the men decided against doing so. They concluded that it would not look right taking those items outside at that time of the morning.

The men then placed the boys in Vernice Weary's automobile and drove to Illinois. During the trip defendant threw some shells from a gun in his possession out the car window. Defendant also made sure to remove all personal identification in the boys' possession. The ride ended in East St. Louis, Illinois, where the defendant asked Wilkerson, "Do you want to do one of these with me?" Wilkerson then took Michael to a nearby railroad boxcar. Once inside, Wilkerson fired three shots, one of which struck Michael in the shoulder. Meanwhile, defendant made Larry run up a hill and lie down. Defendant fired five shots at Larry and the boy was wounded in the leg.

The City of St. Louis police were subsequently notified and went to the Weary residence. The found Vernice Weary's body in a bedroom of the home. An autopsy revealed that Ms. Weary had been shot three times. Michael and Larry later identified a photograph of defendant as the man who accompanied Wilkerson. Defendant was eventually located in Tacoma, Washington and returned to St. Louis. While in custody defendant told police officers that he had shot the boy but not the lady. At trial defendant presented alibi testimony of his girlfriend that they had left St. Louis on July 28, 1977 and driven to Tacoma, Washington.

Defendant's first contention in this appeal is a challenge to the sufficiency of the first count of the indictment upon which he was tried. Count I of the indictment read, in part, as follows:

"That HORISE O'TOOLE also known as HORACE O'TOOLE, ACTING WITH EARL WILKERSON, at the City of St. Louis aforesaid, on the 30th day of July, 1977, did unlawfully, feloniously and willfully kill VERNICE WEARY, while the said HORISE O'TOOLE also known as HORACE O'TOOLE, acting with EARL WILKERSON, was engaged in the perpetration of a robbery, and did thereby shoot the said VERNICE WEARY, inflicting a mortal wound upon the said VERNICE WEARY, from which said mortal wound VERNICE WEARY, did die on July 30, 1977; contrary to Sections 565.002, 565.008, Revised Statutes of Missouri, in such case made and provided and against the peace and dignity of the State."

Defendant argues that the indictment is fatally defective because it (1) erroneously contained the elements of first degree (felony) murder and an element of capital murder, (2) was duplicitous in that it purported to charge defendant with two separate crimes in one count and (3) referred to a non-existent statutory section.

We note initially that defendant did not challenge the sufficiency of the indictment before or during trial, nor in his motion for a new trial. However, an allegation that an information or indictment failed to charge a crime is jurisdictional and may be raised for the first time on appeal. State v. Tierney, 584 S.W.2d 618, 621 (Mo.App.1979); State v. Johnson, 548 S.W.2d 245, 248 (Mo.App.1977).

The indictment did contain all the elements of first degree (felony) murder plus one element of capital murder "willfully." ¹ Defendant argues that because of the inclusion of "willfully" the indictment failed to adequately notify him whether he was charged with capital murder or first degree (felony) murder. The failure of an indictment or information to precisely track the statutory language does not necessarily render it insufficient. In determining the sufficiency of an indictment the test is whether or not it states the essential elements of the offense charged so that the defendant is adequately informed of the charge against him and the final disposition of the charge will constitute a bar to further prosecution for the same offense. State v. Downs, 593 S.W.2d 535, 540 (Mo.1980).

Count I of the indictment charged defendant with (1) the unlawful killing (2) of a human being (3) committed in the perpetration (4) of a robbery. Thus, Count I of the indictment clearly stated the elements of first degree (felony) murder. The inclusion of "willfully" did not render the indictment insufficient. A charge of capital murder would require allegations of acting knowingly, premeditatedly and deliberately. We hold that the indictment adequately informed defendant that he was charged with first degree (felony) murder and constituted a bar to further prosecution for that offense. Furthermore, there was no demonstration that defendant was prejudiced by the use of the language complained of. Rule 24.11 (1977). ²

Defendant argues that the inclusion of "willfully" in Count I rendered the indictment void for duplicity. We have already determined that the indictment sufficiently alleged the crime of first degree (felony) murder. The indictment clearly did not charge two or more distinct offenses in Count I and defendant's duplicity argument is without merit.

Defendant also argues that the indictment was defective because it listed a non-existent statute. Rule 24.01(a) (now Rule 23.01(b)) required an indictment to state the section of the Revised Statutes of Missouri proscribing the conduct charged and the section fixing the penalty or punishment. The indictment in this case referred to Section 565.002, which was a non-existent statute. ³ It also referred to Section 565.008, which was the correct punishment section. The indictment sufficiently informed defendant of the offense charged and constituted a bar to further prosecution for that offense. Defendant has not shown any prejudice from the listing of the non-existent statutory section. Under these circumstances the failure to list the correct statute proscribing the conduct charged does not invalidate the conviction. State v. Harris, 598 S.W.2d 200, 202 (Mo.App.1980); State v. Umfleet, 587 S.W.2d 612, 616-617 (Mo.App.1979); State v. Tierney, 584 S.W.2d 618, 622 (Mo.App.1979).

Defendant next contends the trial court erred in submitting to the jury the offense of second degree murder on Count I of the indictment and in entering judgment against defendant for that offense. Count I of the indictment charged defendant with first degree (felony) murder. Defendant now argues that the trial court was without jurisdiction to submit second degree murder because that offense is not a lesser included offense of first degree (felony) murder.

A similar factual situation was presented in the companion case of State v. Wilkerson, 616 S.W.2d 829 (Mo. banc, 1981). In wilkerson, the submission to the jury of second degree murder was upheld, even though the information charged the defendant with first degree (felony) murder and did not contain a separate count on second degree murder. This determination was based on the provisions of former Section 556.220 RSMo 1969 (applicable in Wilkerson and in the instant case). Section 556.220 RSMo 1969 provides as follows:

Upon indictment for any offense consisting of different degrees, as prescribed by this law, the jury may find the accused not guilty of the offense charged in the indictment, and may find him guilty of any degree of such offense inferior to that charged in the indictment, or of an attempt to commit such offense, or any degree thereof; and any person found guilty of murder in the second degree, or of any degree of manslaughter, shall be punished according to the verdict of the jury, although the evidence in the case shows him to be guilty of a higher degree of homicide. (Emphasis added).

The Court in Wilkerson noted that the legislature has recognized a difference between an offense being a lesser offense of the offense charged because it is specifically denominated as such and an...