State v. Wells, 11076

• Decision Date: 27 July 1979
• Docket Number: No. 11076,11076
• Citation: 585 S.W.2d 267
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Stewart Lorne WELLS, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 267

585 S.W.2d 267

STATE of Missouri, Plaintiff-Respondent, v. Stewart Lorne WELLS, Defendant-Appellant.

No. 11076.

Missouri Court of Appeals, Southern District, Division Two.

July 27, 1979.

Motion for Rehearing and Transfer Denied Aug. 17, 1979.

Application to Transfer Denied Sept. 11, 1979.

John D. Ashcroft, Atty. Gen., Brenda Farr Engel, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

Mary A. Dickerson, David Donnelly, Donnelly, Baldwin & Wilhite, Lebanon, for defendant-appellant.

BILLINGS, Presiding Judge.

Defendant Stewart Lorne Wells was convicted of two counts of stealing property of a value of more than $50 and a third count of tampering with a motor vehicle. The jury fixed defendant's punishment on the tampering charge at two years' imprisonment but could not agree on punishment for the stealing charges. The trial court imposed concurrent five year sentences on the stealing counts and ordered the two year sentence for tampering to be served consecutive to the stealing sentences. We affirm as to the stealing counts but reverse and remand the tampering count.

The state's information, after first alleging two counts for stealing citizens band radios, each of a value of more than $50 then purported to allege a violation of § 560.175, RSMo 1969, tampering with a motor vehicle statute. Although the vehicle is described, by year, make, model, and license number, ownership thereof was not alleged. The statute provides: "No person shall . . . tamper with a motor vehicle . . . without the permission of the owner thereof."

In State v. Cantrell, 403 S.W.2d 647 (Mo.1966), the defendant was convicted of larceny on an information which did not allege ownership of the purloined goods. In reversing and remanding our Supreme Court pointed out that the purpose of alleging ownership is to show that title or ownership is not in the accused and to give notice to the defendant of the particular offense for which he is being charged and to bar subsequent prosecution of him for the same offense.

We believe the principle of Cantrell is controlling here because the lack of permission by the Owner of the particular motor vehicle is a constituent element of the offense prohibited by § 560.175, RSMo 1969. Cantrell follows the general rule that the ownership of property involved in the commission of an offense must be directly alleged where such ownership is an essential element of the offense charged. 41 Am.Jur.2d, Indictments and Informations, § 146; 42 C.J.S. Indictments and Informations § 143. "Failure to allege a constituent element of an offense affects the substantial rights of the defendant, and such a failure is not cured by the statute of jeofails, § 545.030, V.A.M.S. and Criminal Rule 24.11, V.A.M.R." Cantrell at 650.

The state argues we should hold the defendant's challenge to the sufficiency of the information was waived by his failure to seek a bill of particulars under Rule 24.03, V.A.M.R. We summarily reject this contention because the sufficiency of the information is a matter for our review under Rule 28.02, V.A.M.R., whether raised below or not. The failure to include the name of the owner of the motor vehicle rendered the tampering count fatally defective. Accordingly, the judgment entered on count three against defendant for tampering with a motor vehicle is reversed and the cause remanded.

We turn now to those points of defendant which are directed to his convictions for stealing. Initially, we note that when this case was submitted and an opinion had been adopted, the transcript filed herein did not show a timely motion for new trial had been filed. Thereafter, we were advised by defendant's timely motion that an extension of time to file a motion for new trial had in fact been granted by the trial court, as shown by a copy of the court's docket entry accompanying the motion. We sustained defendant's motion to supplement the transcript to reflect the extension and withdrew our earlier opinion. We mention this as a Caveat to those who approve transcripts, apparently without reading the same. ¹

We have examined defendant's appellate points in light of the motion for new trial and find ourselves in much the same situation as if no timely motion for new trial had been filed. Defendant's first point concerns the giving of an instruction out of order, contrary to MAI-CR notes on use, and another instruction directed to the tampering charge. At trial defendant made a general objection to all instructions. His motion for new trial attacks the instructions given in this case in two separate averments as follows: "Because the instructions of the State are in error" and "Because the instructions of the State are misleading." The general allegations in defendant's motion for new trial pertaining to alleged instructional error fail to comply with Rule 27.20(a) in that they are not specific and, consequently, preserve nothing for appellate review. State v. Jones, 564 S.W.2d 930 (Mo.App.1978). What we have earlier held with respect to the tampering count eliminates defendant's complaint regarding that instruction, and we decline plain error review of his remaining complaint because there was no misdirection or failure to instruct the jury on the law of the case so as to cause manifest injustice. State v. Johnson, 546 S.W.2d 725 (Mo.App.1977).

Defendant attacks the admission in evidence of a police report ² signed by state's witness Blaker on the grounds it was hearsay and should not have been used to prove the guilt of the defendant on the two stealing counts. Contrary to defendant's assertion, Blaker did identify the signature on the report to be his. Additionally,...