State v. Brookshire

• Citation: 325 S.W.2d 497
• Decision Date: 13 July 1959
• Docket Number: No. 47100,No. 2,47100,2
• Parties: STATE of Missouri, Respondent, v. W. A. BROOKSHIRE, Appellant
• Court: United States State Supreme Court of Missouri

Page 497

325 S.W.2d 497

STATE of Missouri, Respondent, v. W. A. BROOKSHIRE, Appellant.

No. 47100.

Supreme Court of Missouri, Division No. 2.

July 13, 1959.

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

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

STOCKARD, Commissioner.

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 six months and a fine of $500. He has appealed from the ensuing judgment.

The offense of which defendant was found guilty is a misdemeanor. Sections 561.460 and 556.040. This court does not have jurisdiction of this appeal unless it is a case 'involving the construction of the Constitution of the United States or of this state' within the meaning of Article V, Section 3, Constitution of Missouri, V.A.M.S. No other ground for jurisdiction in this court is urged by defendant, and without the need for extended discussion it is evident that no other basis for appellate jurisdiction in this court could exist.

In the jurisdictional statement in his brief defendant states that the appellate jurisdiction of this court is invoked 'for the reason that the defendant is challenging the constitutionality of Section 561.460 for the reason that this section of the statute permits imprisonment for debt, contrary to Section II of Article I of the Constitution of the State of Missouri and for the further reason that the defendant was denied due process of law guaranteed to him under Article V and Article XIV of the Amendments to the Constitution of the United States and Section 10 of Article I of the Constitution of the State of Missouri, and for the further reason that the defendant contends that his constitutional rights were violated in that he was placed in double jeopardy contrary to Article V of the Amendments to the Constitution of the United States.' A short statement of the facts and the procedural steps taken is necessary to the determination of the question of jurisdiction.

In the information orginally 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 given permission to amend the information to show that the date of the check was December 31, 1957. The defendant then asked for time to file a motion to dismiss 'in view of the amendment which has been made.' This request was denied.

The evidence at the trial disclosed that on or about December 31, 1956, the collector of Boone County received through the mail from defendant his personal check dated 'Dec. 31, 1957' in the amount of $728.18 in payment of real and personal property taxes assessed against property of the defendant for the year 1956. The collector did not notice that the check was post dated, and he depositeed the check with the Boone County National Bank to the credit of a fund maintained for tax money collected by him. The State Bank of Ste. Genevieve, Ste. Genevieve, Missouri, upon which the check was drawn, refused payment and the check was returned to the collector marked 'insufficient funds.'

Defendant has submitted twelve separate points in his brief to this court. We have read and reread carefully each and every point and we find not the slightest reference, even by inference, to the alleged constitutional questions in the jurisdictional statement which we have numbered and . In addition, the only allegation in the jurisdictional statement pertaining to double jeopardy is that there was a violation of the Fifth Amendment to the Constitution of the United States and this prohibition does not bind the states but applies only to offenses against and trials under the laws of the United States. Ex parte Dixon, 330 Mo. 652, 52 S.W.2d 181; 22 C.J.S. Criminal Law Sec. 238. In a portion of the argument, which does not purport to follow the points relied on, we find this statement: 'The defendant contends that Section 561.350 RSMo 1949, V.A.M.S. which creates a criminal offense of giving a check for a pre-existing debt is unconstitutional in that it is imprisonment for debt. It is true that this court in State v. Taylor [355 Mo. 460, 73 S.W.2d 378, 95 A.L.R. 476] held that it was not a violation of the constitutional provision. However, there was a divided court.' This is the only statement in the brief, other than in the jurisdictional statement, concerning this contention.

Constitutional questions must be raised at the earliest opportunity consistent with good pleading and orderly procedure, State v. Lock, 302 Mo. 400, 259 S.W. 116, and must also be kept alive throughout the case by proper objection, State v. Egan, Mo.App., 272 S.W.2d 719, and must be preserved in the motion for new trial. State v. Medley, 360 Mo. 1032, 232 S.W.2d 519; State v. Egan, supra . Supreme Court Rule 1.08, 42 V.A.M.S., provides that a brief shall contain 'The points relied on, which shall show what actions or rulings of the Court are sought to be reviewed and wherein and why they are claimed to be erroneous, with citation of authorities thereunder.' The questions for decision on appeal are those stated in the points relied on, and a question not there presented will be considered to be abandoned on appeal and no longer an issue in the case. Cooper County Bank v. Bank of Bunceton, 310 Mo. 519, 276 S.W. 622; Brooks v Menaugh, 320 Mo. 183, 6 S.w,2d 902; Bankers' Mortgage Co. v. Lessley, Mo.Sup., 31 S.W.2d 1055; Walter L. Lacy Co. v. National Finance Corporation, Mo.Sup., 73 S.W.2d 747; Allen v. Chicago, R. I. & P. R. Co., 327 Mo. 526, 37 S.W.2d 607; Junior v. Junior, Mo.Sup., 84 S.W.2d 909; Gruet Motor Car Co. v. Briner, Mo.Sup., 224 S.W.2d 73; Stribling v. Jolley, 362 Mo. 995, 245 S.W.2d 885; State v. Harold, 364 Mo. 1052, 271 S.W.2d 527. A constitutional question may not be inferred argumentatively from facts stated, City of St. Louis v. Butler Co., 358 Mo. 1221, 219 S.W.2d 372, and of course a constitutional question is not preserved for appellate review by mention only in the jurisdictional statement or by casual reference only in the argument portion of the brief. As stated in Ingle v. City of Fulton, Mo.Sup., 260 S.W.2d 666, 667, 'in order to preserve a constitutional question for review the question must be raised at the first available opportunity; the sections of the constitution claimed to have been violated must be specified; the point must be presented in the motion for a new trial, if any; and it must be adequately covered in the briefs.' See also Swift & Company v. Doe, Mo.Sup., 311 S.W.2d 15, 21. But, assuming that it could be accepted that the contention...