State v. Murta

551 S.W.2d 943, 1977 Mo. App. LEXIS 2548

Opinion

PER CURIAM:

By information, defendant was charged with possession¹ 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.” ²

Prom 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.1978); 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.

Footnotes

1

. All emphasis is ours.

2

. The transcript of appeal does not reflect the entry of a judgment as required by Rule 27.11, V.A.M.R.