State v. Vonderau, 53360

• Decision Date: 10 March 1969
• Docket Number: No. 53360,53360
• Citation: 438 S.W.2d 271
• Parties: STATE of Missouri, Respondent, v. Otto Louis VONDERAU, Appellant.
• Court: Missouri Supreme Court

Page 271

438 S.W.2d 271

STATE of Missouri, Respondent, v. Otto Louis VONDERAU, Appellant.

No. 53360.

Supreme Court of Missouri, En Banc.

March 10, 1969.

Norman H. Anderson, Atty. Gen., Jefferson City, Frank P. Motherway, Sp. Asst. Atty. Gen., St. Louis, for respondent.

Henry G. Morris, St. Louis, for appellant.

DONNELLY, Judge.

Defendant, Otto Louis Vonderau, was convicted on May 24, 1967, of willfully striking a police officer under § 557.215, RSMo 1959, V.A.M.S. (Laws 1965, p. 668, § 1) by a jury in the Circuit Court of the City of St. Louis, and his punishment was assessed at imprisonment in the Workhouse of the City of St. Louis for a period of six months. Following rendition of judgment and imposition of sentence an appeal was perfected to this Court. We reverse and remand for new trial.

The essential portion of the indictment charges:

'That OTTO LOUIS VONDERAU on the 19th day of May, one thousand nine hundred and sixty-six, at the City of St. Louis aforesaid, willfully did strike and hit with an automobile PATROLMAN DONALD EICKHOFF, a member of the St. Louis Metropolitan Police Department; said PATROLMAN DONALD EICKHOFF, then and there and at the time of the assault aforesaid being actively engaged in the performance of duties imposed upon him by law; contrary to the form of the Statute in such case made and provided, and against the peace and dignity of the State.'

Section 557.215, RSMo 1959, V.A.M.S. (Laws 1965, p. 668, § 1), reads as follows: 'Any person who shall willfully strike, beat or wound any police officer, sheriff, highway patrol officer or other peace officer while such officer is actively engaged in the performance of duties imposed on him by law, and every person who shall aid or assist in doing any such striking, beating or wounding, is guilty of a crime and, upon conviction, shall be punished by imprisonment by the department of corrections for a term of not more than five years, or by confinement in the county jail for not less than six months nor more than one year, or by a fine of not more than one thousand dollars, or by both such fine and imprisonment.'

Appellant contends the indictment is fatally defective because it fails to allege appellant willfully and feloniously did strike and hit with an automobile Patrolman Donald Eickhoff. We agree.

In State v. Murdock, 9 Mo. 739, 740 (1846), this Court said: '* * * The word feloniously is indispensably necessary in all indictments for felony; whether statutory or by common law.' See also State v. Gilbert, 24 Mo. 380, 381 (1857); and State v. Deffenbacher, 51 Mo. 26, 27 (1872).

In State v. Siegel, 265 Mo. 239, 245--246, 177 S.W. 353, 354 (1915), this Court stated the general rule as follows: '* * * Whatever may be the rule elsewhere, whether founded upon an express statute or such a construction of the statute of jeofails as to render the use of the word not necessary, there is no exception to the necessity of its use in Missouri in any indictment or information where the offense charged is a felony; and, while the word 'felony' seems, as defined by section 4923, R.S. 1909 (§ 556.020 RSMo 1959, V.A.M.S.), to be restricted to capital cases and those punishable by imprisonment in the penitentiary, under numerous rulings of this court it is held to mean any offense for which the accused may, upon conviction, be imprisoned in the penitentiary, although the minimum punishment for same may be a jail sentence or a fine. * * *

'In charging a felony, therefore, whether made so by a direct statute or by classification on account of the punishment prescribed, the use of the word 'feloniously' is necessary, for the very sufficient reason that its use informs the accused of the nature or grade of crime he is alleged to have committed. The offense here charged is not alleged to have been committed feloniously, and hence the information is insufficient.'

In cases involving violations of the intoxicating liquor statutes, this Court has not followed the general rule, and has held that an indictment in the language of the statute was sufficient. Cf. State v. Burton, 324 Mo. 214, 22 S.W.2d 1049 (1929); State v. Updegraff, Mo.Sup., 214 S.W.2d 22 (1948). However, this Court, in State v. Pryor, 342 Mo. 951, 955, 119 S.W.2d 253, 255 (1938), referred to State v. Burton, supra, as follows: 'While there are some observations in the Burton Case that might seem to question the soundness of the rule that the use of the word 'feloniously,' (absent some statutory provision dispensing with its use), is always necessary in order to charge a felony, it cannot be believed that the court meant to overrule the long line of decisions so holding, without discussing and without even mentioning them. The decision in the Burton Case was limited to cases involving violation of the intoxicating liquor laws.'

This case does not involve a violation of the intoxicating liquor laws. The question, therefore, becomes whether there is a provision in § 557.215, supra, which dispenses with the use of the word 'feloniously.' We cannot say that § 557.215, supra, declares that the act of willfully striking a police officer is a 'felony' regardless of the purpose, manner or intent of such act. It does declare such act a 'crime.' However, the term 'crime' may mean 'any offense, as well misdemeanor as felony.' Section 556.010, RSMo 1959, V.A.M.S. The general rule applies. The statute does not dispense with the use of the word 'feloniously' in the indictment.

The State cites State v. Kesterson, Mo.Sup., 403 S.W.2d 606, and State v. Frankum, Mo.Sup., 425 S.W.2d 183. We do not understand those cases to hold that the State need not allege the essential facts constituting the offense. They do hold that the 'failure of the indictment or information to give all desired details may be waived by the defendant's failure to request a bill of particulars.' State v. Frankum, Mo.Sup., 425 S.W.2d 183, 189.

This Court has consistently held that the use of the word 'feloniously' in an indictment is fundamental and essential to its validity. The indictment is fatally defective for failure to allege that the act in question was 'feloniously' done. The case must be reversed and remanded for new trial.

Defendant raises other assignments of error which, with one exception, need not be considered on this appeal. 'Where an indictment has been held fatally defective, other allegations of error based upon matters occurring at the trial, such as the sufficiency of the evidence, the giving or refusal of instructions, the admission or exclusion of evidence...