State v. Cummins

• Decision Date: 06 December 1926
• Docket Number: No. 15789.,15789.
• Citation: 288 S.W. 792
• Parties: STATE v. CUMMINS.
• Court: Missouri Court of Appeals

288 S.W. 792

STATE v. CUMMINS.

No. 15789.

Kansas City Court of Appeals. Missouri.

December 6, 1926.

Appeal from Circuit Court, Clay County; Ralph Hughes, Judge.

"Not to be officially published."

Raymond W. Cummins was convicted of exacting illegal fees, and he appeals. Affirmed.

Bruce Barnett, of Kansas City, for appellant.

North T. Gentry, of Jefferson City, for the State.

BLAND, J.

At the November term, 1925, of the circuit court of Clay county the following indictment was returned by the grand jury:

"The grand jurors of the state of Missouri, duly empaneled, charged and sworn to inquire within and for the body of the county of Clay, upon their oaths present and charge that Raymond W. Cummins, of said county, was on and prior to the ____ day of October, 1925, the duly elected, qualified, and acting prosecuting attorney of Clay county, Mo., that on said ____ day of October, 1925, at the county of Clay and state of Missouri, the said Raymond W. Cummins, under color of his said office, did unlawfully and willfully exact, demand, and receive from one Charles Crowley, at the hands of one L. Donavan, a certain fee and reward, to wit, $35, in consideration of services rendered and to be rendered by said Raymond W. Cummins, as prosecuting attorney as aforesaid, which sum of money was not due him, the said Raymond W. Cummins, as prosecuting attorney of said county, and which fee was not due him, the said Raymond W. Cummins, as such prosecuting attorney, against the peace and dignity of the state. North T. Gentry, Attorney General of Missouri."

On the 3d day of December, 1925, plaintiff pleaded guilty, and his punishment was assessed at a fine of 100; on the following day he paid the fine and the costs of the case. On January 23, 1926, at the November term, he filed a motion styled "Motion to set aside the judgment and for leave to withdraw plea of guilty." The court overruled this motion. Thereafter defendant filed a motion for a new trial, reading as follows:

"Comes now defendant and moves the court to set aside the order this day made overruling defendant's motion to set aside the judgment in this cause and to permit defendant to withdraw his plea of guilty, and to grant a new trial upon said motion, for the reason that upon the undisputed evidence and the record proper in this case said motion should be sustained for all the reasons therein set out, and the court erred in overruling said motion, because the indictment does not allege facts sufficient to constitute any offense or to support the judgment; because the indictment is not signed by any person authorized to sign same and there was no order of court or direction of the Governor to the Attorney General to sign the same; because said pretended indictment does not inform defendant of the nature and cause of the accusation."

The court likewise overruled this motion of defendant, and he has appealed.

Neither defendant nor the state has favored us with a brief. As to the manner in which the Attorney General got into the case it appears that on November 30, 1925, the Governor wrote a letter to him stating that at the request of the judge of the Seventh judicial circuit of Missouri the writer directed the Attorney General to go to Clay county and "appear before and assist in a grand jury examination to be held there in the near future." Thereafter, on the 2d day of December, 1925, the Attorney General...