State v. Brookshire

• Decision Date: 17 November 1959
• Docket Number: No. 30440,30440
• Citation: 329 S.W.2d 252
• Parties: STATE of Missouri (Plaintiff), Respondent, v. W. A. BROOKSHIRE (Defendant), Appellant.
• Court: Missouri Court of Appeals

Page 252

329 S.W.2d 252

STATE of Missouri (Plaintiff), Respondent, v. W. A. BROOKSHIRE (Defendant), Appellant.

No. 30440.

St. Louis Court of Appeals, Missouri.

Nov. 17, 1959.

W. A. Brookshire, Columbia, Betty Lyon, Chicago, Ill., for appellant.

John M. Dalton, Atty. Gen., State of Missouri, Richard R. Nacy, Jr., Special Asst. Atty. Gen., for respondent.

ANDERSON, Judge.

Defendant, W. A. Brookshire, was found guilty of the offense of issuing a check with intent to defraud in violation of Section 561.460 (all statutory references are to RSMo 1949, V.A.M.S.) and his punishment was fixed by the jury at confinement in the County Jail for a period of six months and a fine of $500. From this judgment defendant appealed to the Supreme Court. The appellate jurisdiction of the Supreme Court was invoked on the theory that Section 561.460 is unconstitutional for the reason that it permits imprisonment for debt, contrary to Section II of Article I of the Missouri Constitution, V.A.M.S.; that defendant was denied due process of law guaranteed to him under the Constitution of the United States and of the State of Missouri; and that he was placed in double jeopardy contrary to Article V of the Amendments to the Constitution of the United States. The Supreme Court held that the foregoing constitutional questions were not timely raised or properly preserved and hence it did not have jurisdiction of the appeal. The cause was accordingly transferred to this court for proper disposition. State v. Brookshire, Mo., 325 S.W.2d 497.

In the information originally filed by the Prosecuting Attorney of Boone County the check upon which the charge was based was described as being dated 'Dec. 31, 1956.' After a change of venue was taken to Audrain County, and on the day the case was set for trial, the Prosecuting Attorney was granted permission to amend the information to show that the date of the check was 'Dec. 31, 1957.' At that time defendant requested time to file a motion to dismiss 'in view of the amendment which has been made.' This request was denied.

The evidence offered by the State disclosed that on November 14 or 15, 1956, the County Collector of Boone County, Mr. Woodrow Wilson, sent a tax statement to defendant for his county taxes for 1956. The amount due as shown by this statement was the sum of $229.85 for personal property tax, and the sum of $498.33 for real property tax--a total tax of $728.18. Under the law, these taxes were due on November 1, 1956, and would become delinquent on January 1, 1957.

On January 1, 1957, or near that date, Collector Wilson received a check through the mail from the defendant for $728.18, which sum was the full amount owed by defendant for his 1956 taxes. The check bore the date December 31, 1957, and in the lower lefthand corner appeared the notation: 'Taxes 1956.' The check was drawn upon the Bank of Ste. Genevieve, Missouri. After receipt of this check Wilson deposited it in the Boone County National Bank in an account maintained for the deposit of tax money collected by him. He did not at the time notice that the check was dated '1957' instead of $1956'. Wilson also at the time marked the tax statement 'paid' and mailed it to defendant. This tax statement contained the following notation: 'checks and drafts must clear before this becomes a receipt.'

The check in question was endorsed by the Boone County National Bank and sent to the Federal Reserve Bank of St. Louis, and from the latter to the Bank of Ste. Genevieve for payment. The Bank of Ste. Genevieve, on January 7 or 8, 1957, refused payment of the check because of insufficient funds and returned the check through the Federal Reserve Bank of St. Louis to the Boone County National Bank. The latter bank returned the check to Wilson with a slip attached showing that the check was returned for the reason of 'insufficient funds' and that Wilson's account was charged with the amount of the check. Wilson did not run the check through the bank again, but did call the Bank of Ste. Genevieve on January 18, 1957, and was informed by Mr. Wirth, an officer of the bank, that the check was 'not good' on that day or on any day since it was given.

On January 11, 1957, Wilson wrote defendant the following letter:

'Dear Sir:

'Your check in the amount of $728.18 has been returned to us marked 'insufficient funds.' Please advise us on this matter by Monday, January 14, 1957, or your taxes will remain on our records and will be delinquent as of January 1, 1957.'

On January 12 or 14, 1957, defendant telephoned Wilson and said he would come to Wilson's office to take up this matter of the 1956 taxes, but never did so. The information was filed May 8, 1957, in the Boone County Circuit Court.

Defendant opened his account at the Bank of Ste. Genevieve on December 3, 1956. On that date he borrowed $1,500 from the bank, depositing in his account the sum of $805.77. For the balance of the sum borrowed, being $694.23, he secured a Cashier's check made payable to Mr. and Mrs. Kermit Wiggs. This check was for the payment of pasture rent. Defendant issued checks in the total sum of $804.93 against his bank account between December 3, 1956, and December 17, 1956, which were paid by the bank, leaving a balance in the account on the latter date of 84 cents. No deposit was made in this account other than the initial deposit during either December, 1956, or January, 1957. In February, 1957, there was a deposit of $100. No deposit was thereafter made. The account was closed on November 22, 1957, and never reopened. At no time after December 17, 1956, until the account was closed, were there sufficient funds in the account to cover a check for $728.18. Defendant had no arrangements with the Bank of Ste. Genevieve for credit for this check or any other check.

At the close of the State's case the defendant offered a motion for judgment of acquittal, which the court refused. Defendant did not take the stand or offer any evidence. The case was then submitted to the jury, with the result as heretofore indicated.

Appellant's first point is that the Circuit Court of Audrain County was without jurisdiction to proceed with the case after the court improperly allowed the Prosecuting Attorney to amend the information to show that the check was dated December 31, 1957, instead of December 31, 1956; and by proceeding with the trial in the absence of jurisdiction defendant's rights, under the due process clauses of the Federal and State Constitutions, were violated. The Supreme Court held that this contention did not call for a construction of said constitutional provisions, for the reason that defendant's position was not that the authorized procedure employed (Sections 545.290 and 545.300, and Supreme Court Rule 24.02, 42 V.A.M.S.) denied him due process of law, but that the court's action was in violation of such authorized procedure. State v. Brookshire, Mo., 325 S.W.2d 497. This leaves for consideration by this court the question whether or not the court erred in permitting the amendment.

Section 545.290 provides that any information may be amended in matter of form or substance at any time by leave of court before trial. Section 545.300 provides that any information may be amended either as to form or substance at any time before the jury is sworn, but such amendment shall not be allowed...