Opinion
No. 10466
May 23, 1977
APPEAL FROM THE CIRCUIT COURT, DENT COUNTY, DORMAN L. STEELMAN, J
John Ashcroft, Atty. Gen., Paul Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent
Allan Goodloe, Jr., Shaw, Howlett Schwartz, Clayton, for defendant-appellant
By information, defendant was charged with possession of phendimetrazine tablets. In orally instructing the jury panel after it was sworn for voir dire examination, the court stated that defendant was charged with possession of the controlled substance. MAI-CR 1.02. By Instruction No. 4 (MAI-CR 14.10), the court charged on the crime of possession. Nevertheless, the jury returned a verdict finding defendant "guilty of selling a controlled substance." After overruling defendant's motion for a new trial, the "Court fixed punishment in accordance with jury verdict" and, in his notice of appeal, defendant stated that "The offense of which appellant was convicted was possession of controlled substance."
All emphasis is ours.
The transcript of appeal does not reflect the entry of a judgment as required by Rule 27.11, V.A.M.R.
From the foregoing it is obvious that defendant was not charged with the offense of which he was convicted. The verdict, not being responsive to the issues, is fatally defective. State v. Barnes, 492 S.W.2d 729, 730[2-3] (Mo. 1973); State v. Bird, 242 S.W.2d 576, 577[3] (Mo. 1951). The judgment, therefore, is reversed and the cause remanded for a new trial
All concur