State v. Cunningham
| Decision Date | 13 July 1964 |
| Docket Number | No. 1,No. 50276,50276,1 |
| Citation | 380 S.W.2d 401 |
| Parties | STATE of Missouri, Respondent, v. William CUNNINGHAM, Appellant |
| Court | Missouri Supreme Court |
Thomas F. Eagleton, Atty. Gen., Jefferson City, James J. Sauter, Special Asst. Atty. Gen., St. Louis, for respondent.
Stanford A. Zeldin, Kansas City, for defendant-appellant.
William Cunningham appeals from a judgment imposing a sentence of imprisonment for six years for feloniously obtaining money by means of trick, deception and false and fraudulent representations, statements or pretense, commonly called 'the confidence game'. Section 561.450. (All references to statutes or rules are to RSMo 1959, V.A.M.S., and Supreme Court Rules, V.A.M.R.) He qestions (1) the validity and sufficiency of the information, (2) the giving of instruction No. 2, being the State's main or verdict directing instruction, and (3) the verdict.
In his motion for a new trial Cunningham raises the point that the State failed to make a submissible case. He does not make this point, specifically designated as such, in his 'Points and Authorities'; yet, by inference in his printed argument, he indirectly questions the sufficiency of the evidence presented by the State. This assignment of error in his motion for a new trial was abandoned by him by his not presenting this question in his brief. Rule 28.02. State v. Johnson, 362 Mo. 833, 245 S.W.2d 43. Although it was so abandoned, we have read and considered the evidence.
The information, including the caption because it is referred to in the State's brief, but omitting the signatures, oath and jurat, is as follows:
'Now comes Sam Modica, Assistant Prosecuting Attorney for the State of Missouri, in and for the body of the County of Jackson, and upon his oath informs the Court, that William Cunningham whose Christian name in full is unknown to said Assistant Prosecuting Attorney, late of the County aforesaid, on the 2nd day of February, 1962, at the County of Jackson, State of Missouri, did then and there unlawfully, knowingly, intentionally and feloniously, with intent to cheat and defraud, obtain from Fay A. Bradley, certain money, property and valuable things, to-wit: Four Thousand Twenty-Five ($4025.00) Dollars by means of trick, deception and false and fraudulent representations, statements or pretense, commonly called 'Confidence Game'; against the peace and dignity of the State.'
The decision in this case turns decisively on the first point raised by Cunningham. For this reason we do not recite the evidence, nor is it necessary that we treat with the other two points raised by appellant. '* * * without a valid indictment, these questions are no longer live issues and any discussion of them would amount to nothing more than obiter dictum.' State v. Harris, Mo., 313 S.W.2d 664, 671.
Specifically, the defendant states that the information is invalid and insufficient for the reason () that it fails to allege that the victim of the confidence game relied upon the defendant's false representations and in reliance thereon was induced to part with his money. The defendant did not allege this point as error in his motion for a new trial. But he did raise it in his brief and we consider it because we must render our judgment on the record before us. Rule 28.02. Section 547.270, RSMo 1959.
Woven into points two and three made by defendant can be heard strains of the same given specific reason why the information is considered by him to be invalid and insufficient.
To be sufficient an information (1) must be in writing and (2) shall state the essential facts constituting the...
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State v. Williams, 36168
...or information allege the offense in the terms of the statute. State v. Kesterson, 403 S.W.2d 606, 609 (Mo.1966); State v. Cunningham, 380 S.W.2d 401, 403 (Mo.1964). Where, however, the statute requires a certain state of mind, e.g. intent or knowledge, it is essential that the indictment o......
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Bullington v. State, 55046
...It is necessary to allege all the eseential elements of the crime intended to be charged. Criminal rule 24.01, V.A.M.R., State v. Cunningham, Mo., 380 S.W.2d 401, 403; State v. Colbart, Mo., 411 S.W.2d 92, 94; State v. Nolan, Mo., 418 S.W.2d 51. Otherwise, the accused's right to be informed......
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State v. Barnes
...at the trial will not be examined, because without a valid Information, no live issue exists for determination. State v. Cunningham, 380 S.W.2d 401, 402(2) (Mo.1964); State v. Harris, 313 S.W.2d 664, 671(9) (Mo.1958); State v. Lee, 488 S.W.2d 272 An Information charging the obtaining of pro......
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State v. Barlett, 8410
...Mo.App., 322 S.W.2d 188(9); State v. Tevis, Mo.App., 340 S.W.2d 415, 419; State v. Harris, Mo., 313 S.W.2d 664, 669; State v. Cunningham, Mo., 380 S.W.2d 401, 403; State v. Richardson, Mo., 343 S.W.2d 51, 55; State v. Sargent, 241 Mo.App. 1085, 256 S.W.2d 265(12); 61 C.J.S. Motor Vehicles S......