State v. Charity

BILLINGS, Judge.

Defendant Thomas Charity was convicted by a Jasper County jury of promoting prostitution in the second degree in violation of § 567.060, RSMo 1978, and his punishment was fixed at seven years imprisonment. Because the grand jury indictment failed to allege an essential element of the crime, we must reverse and remand.

Section 567.060, RSMo 1978, provides as follows:

“A person commits the crime of promoting prostitution in the second degree if he knowingly promotes prostitution by managing, supervising, controlling, or owning, either alone or in association with others, a house of prostitution or a prostitution business or enterprise involving prostitution activity by two or more prostitutes.” (Our emphasis.)

A cursory inspection of the indictment against the defendant discloses that he was not charged with managing, supervising, controlling, or owning, alone or otherwise, the massage parlors which prompted the indictment. The indictment read:

“The Grand .Jurors of the County of Jasper, State Of Missouri, charges [sic] that the defendant, in violation of Section 567.060, RSMo., committed the Class C Felony of Promoting Prostitution In the Second Degree, punishable upon conviction under Sections 558.011.1(3) & 560.-011, RSMo., in that during the Period from January 1, 1979, to October 1, 1979, in the County of Jasper, State of Missouri, the defendant knowingly promoted prostitution activity by two or more prostitutes at the Venus Massage on East 7th Street, Joplin, Missouri and at the Apollo Massage located in Jasper County, with the address of Route 2, Galena, Kansas.”

We think it is clear that defendant’s management, supervision, control, or ownership is an essential element of the crime of promoting prostitution in the second degree. See Wood v. State, 573 S.W.2d 207 (Tex.Cr.App.1978); MACH-CR 21.08.¹ An indictment must allege all of the elements of the crime intended to be charged and any missing elements cannot be supplied by intendment or implication. State v. Brooks, 507 S.W.2d 375 (Mo.1974); Rule 23.01(b), V.A.M.R. An indictment is jurisdictional and if it fails to charge a crime the court acquires no jurisdiction to proceed and whatever transpires after its filing is a nullity. Montgomery v. State, 454 S.W.2d 571 (Mo.1970); State v. Johnson, 548 S.W.2d 245 (Mo.App.1977). And, even where not challenged in the trial court, the sufficiency of the indictment is reviewable on appeal. State v. Kesterson, 403 S.W.2d 606 (Mo.1966); Rule 30.20, V.A.M.R.

The State urges that because the defendant did not seek a bill of particulars under Rule 23.04, V.A.M.R., this failure constituted a waiver of the sufficiency of the indictment. However, Rule 23.04 requires that the indictment or information allege “the essential facts constituting the offense charged” and authorizes a bill of particulars for the purpose of informing the defendant of the particulars of the offense sufficiently to prepare his defense. Where, as here, “[T]he omissions in the indictment or information are of such fundamental character as to make it wholly insufficient and invalid, ... such insufficiency is not waived by failure to raise the question at the early stages.” State v. Kesterson, supra, at 611.

In view of our conclusion that the indictment was fatally defective, there is no occasion to review other assignments of error. The judgment is reversed and the cause remanded.

HOGAN, J., and PREWITT, P.J., concur. MAUS, C.J., dissents and files opinion.

1 . Effective January 1, 1979.

We note that the State’s verdict director [MAI-CR 2d 21.08] required the jury to find that “the defendant promoted prostitution by supervising in association with others (Our emphasis.)