State v. Martin

126 S.W. 442, 226 Mo. 538, 1910 Mo. LEXIS 76

• Court: Supreme Court of Missouri
• Decided: March 15, 1910
• Status: Published

Opinions

GANTT, P. J.

This is an appeal from a conviction and sentence of the circuit court of Maries county. On the 5th of October, 1908, the prosecuting attorney of said county filed an amended information charging the defendants, together with James Denton and Lafayette Sneed, with the crime of obtaining money by means of false and fraudulent representations. The cause was dismissed as to Denton and Lafayette Sneed, and the defendants Albert Martin and William Sneed were found guilty and their punishment assessed at three years in the penitentiary. Inasmuch as one of the principal questions arising in the case is whether the information charges a felony or a misdemeanor, it will be necessary to set it forth. The information, omitting the caption, is in these words:

“Joseph W. Mosby, prosecuting attorney within and for the county of Maries in the State of Missouri, upon his oath of office informs the court that heretofore, to-wit, on or about the 9th day of November, 1907, and long prior thereto, at the county of Maries and State of Missouri, one D. B., Wilcox, was the owner of a certain tract of land situate, lying and being in said county of Maries in the State of Missouri, described as follows, to-wit:

“The west half of section twenty-eight, and the west half of the southeast quarter of section twenty-eight, the northwest quarter of section thirty-three, and the south half of section thirty-three, all in township thirty-nine of range ten.

• “And that the said D. B. Wilcox, as the owner of said tract of land, was then and there entitled to have and receive from one W. D. Bull, a certain sum of money, to-wit, the sum of fifteen dollars, on account of and for timber which the said W. D. Bull had theretofore cut and removed from said tract of land, and that on the said 9th day of November, 1907, at the said county of Maries and State aforesaid, James S. Denton, Albert Martin, William Sneed and Lafayette Sneed, with the intent then and there unlawfully and feloniously to cheat and defraud the said W. D. Bull, then and there unlawfully, knowingly and feloniously did falsely and fraudulently represent, state and pretend to the said W. D. Bull that the said James S. Denton was then and there the said D. B. Wilcox, the owner of the said described tract of land, and that he, the said James S. Denton, so falsely and fraudulently represented as the said D. B. Wilcox, as aforesaid, was then and there entitled to have and receive from the said W. D. Bull the said sum of fifteen dollars on account of and for timber which the said W. D. Bull had cut and removed from the said tract of land aforesaid, and that the said W. D. Bull believed said false and fraudulent representation, statements, and pretenses, so made as aforesaid by the said James S.' Denton, Albert Martin, "William Sneed and Lafayette Sneed, to be true, and being deceived thereby, was induced by reason thereof to then and there pay, and did pay, to said James S. Denton the said sum of money, to-wit, the sum of fifteen dollars, and that the said James Denton, Albert Martin, William Sneed and Lafayette Sneed by means and by use of the said false and fraudulent representations, statements and pretenses so made as aforesaid, then and there unlawfully, knowingly and feloniously did obtain from him, the said W. D. Bull, the said sum of fifteen dollars, in money of the value of fifteen dollars, the property and money of him, the said W. D. Bull then and there being, with the intent then and there unlawfully and feloniously to cheat and defraud him, the said W. D. Bull, of the same, whereas, in truth and in fact, the said James S. Denton, was not the said D. B. Wilcox, and was not the owner of the said described land, and the said James S. Denton, Albert Martin, William Sneed and Lafayette Sneed, or either of them, did not then and there have any right or authority whatever to collect, have or receive from the said W. D. Bull the said sum of fifteen dollars in money or any part thereof, for or on account of timber cut and removed from said tract of land by said W. D. Bull, or on any account whatever. And the said James S. Denton, Albert Martin, William Sneed and Lafayette Sneed, then and there well knew the said false and fraudulent representations, statements and pretenses, made as aforesaid, to be false j against the peace and dignity of the Státe,” etc,

It appeared from the testimony that on and prior to the 9th of November, 1907, one D. B. Wilcox, a nonresident of the State of Missouri, was the owner, or at least the reputed owner, of about nine hundred acres of land in sections 28 and 33, township 39, range 10,-in Maries county, Missouri; that said Wilcox was unknown in the neighborhood of said land; that W. D. Bull, John Bull, Richard Blackwell, Thomas Hanks and defendants Albert Martin, William Sneed and Lafayette Sneed, all lived in the neighborhood of this land in Dry Creek township of said county; that said land was timbered land; that W. D. Bull had gone upon said land, either by mistake or as a trespasser, and cut enough timber to make at least fifteen railroad ties, without any' authority from the owner of said land, or any one having authority over the same. It also appeared that other neighbors of Bull had in’ the same manner cut timber on these lands; that'the defendants, Martin and Sneed, conceived of a fraudulent scheme whereby Denton, who lived in the city of Rolla, in Phelps county, and who was at the time a stranger in Dry Creek township, should represent himself as D. B. Wilcox; that the defendants, Martin and Sneed, and Lafayette Sneed designed to have Denton go to Maries county and into said Dry Creek township in the neighborhood of this land and represent himself to W. D. Bull, as well as to other parties in the neighborhood, to be the true owner of the said lands and to represent himself to be D. B. Wilcox, with the intent to cheat, wrong and defraud said W. D. Bull, by settlements and compromises for the timber cut by Bull, and obtain from said Bull the price of the timber, and to also obtain moneys for the same purpose from the other parties who had cut timber on said lands. It transpired from the testimony that Denton was successful in personating Wilcox and in obtaining from W. D. Bull ten dollars in money and five dollars in services, and also obtaining from other neighbors in the neighborhood for timber so cut on said land and for the purpose of avoiding criminal prosecutions against them, in total $115, which sum Denton divided equally between the defendants, Martin and Sneed, and himself. Denton was not the owner of the land nor any part of it, and never had owned it and was a stranger in the neighborhood and a stranger to the land.

t. Before proceeding to an examination of the other alleged errors, the first proposition presented by the defendants is that this is a prosecution either under section 1927 or 1930, Revised Statutes 1899, and consequently that the offense, conceding the guilt of the defendants, is but a misdemeanor and punishable only as petit larceny, whereas, the court construed the indictment as charging an offense under section 2213, Revised Statutes 1899, and consequently a felony, and accordingly instructed the jury, and the jury assessed their punishment as and for a felony and they were sentenced to the penitentiary for a period of three years each.

The statute law of this State on the subject of obtaining money by means of false and fraudulent representations, until 1879, was incorporated in what is now known as section 1927, Revised Statutes 1899. It'was first enacted by the Territorial Legislature in 1808. Under this section it has been ruled that the guilty party was liable to be punished by imprisonment in ’the penitentiary if the amount of money or property obtained by the false pretense was such as would havé sustained a conviction for grand larceny, had he stolen it, and if less he is punishable as for petit larceny. In State v. Pickett, 174 Mo. 663, this section was brought in juxtaposition with section 2213 of the same revision, and it was pointed out that under section 1927 the false pretense must have been “designedly” used to obtain the money or other valuable thing, and that this phrase could not be omitted without vitiating the indictment, whereas under section 2213, the money or other valuable thing must be obtained “by means of or by use of some trick, deception or some false pretense,” etc. It is pointed out in that case also that this court has time and again held that the form of indictment prescribed in this section is unconstitutional. [State v. Terry, 109 Mo. 601; State v. Kain, 118 Mo. 5.] In State v. McChesney, 90 Mo. 120, it was ruled that where the statutory form was insufficient, as we have repeatedly held the form prescribed in section 2213 to be, “the pleader must draw his indictment according to the rules of the common law and these rules would require him to set forth with particularity ‘the trick, deception, or false and fraudulent representations,’ so'that the accused would be informed sufficiently of the cause and nature of the accusation by the particular description of the trick, device, or false pretense contained in the indictment.”

If we are to follow the decision in State v. Pickett, supra, we think it is apparent that the information in this case is insufficient to charge an offense under section 1927, as it utterly fails to charge that the alleged false pretense was “designedly” used to obtain the money or other valuable thing.

Does it sufficiently charge an offense under section 2213? It will be seen that the pleader by way of inducement states the exact relationship of all the parties, the ownership of the land by Wilcox, the cutting of the timber thereon by Bull without authority of law and the false and fraudulent representation . of the defendants to Bull that Denton, one of their co-conspirators, was then and there Wilcox, the owner of the said described tract of land, and was entitled to have and receive from Bull $15 on account of and for the timber which Bull had cut and removed from said tract, and that Bull believing said false and fraudulent representation and pretenses and being deceived thereby, was induced by means thereof then and there to pay and did pay Denton the said sum of fifteen dollars, and that the defendants “by means and by use of the said false and fraudulent representation, statements and pretenses so made as aforesaid, then and there unlawfully, knowingly and feloniously did obtain from him, the said Bull, the said fifteen dollars with the intent then and there feloniously to' cheat and defraud him.” Thus it, would seem that the pleader rejected the statutory form in 2213, and set forth with particularity the trick and deception and fraudulent representation made by the defendants to Bull by means of which they obtained his money. It seems to us, the pleader has stated every constituent element of the statute and has used all the statutory language which individuates this offense. In our opinion the information sufficiently charges an offense under section 2213. [State v. Woodward, 156 Mo. 143.] Under this section of the statute, it is sufficient if the defendant obtains any money, property or valuable thing whatever, - so that it is not necessary that the information should charge the property to be of the value of thirty dollars in order to constitute the offense a felony.

II. As to the second assignment of error, to-wit, that there was no evidence that defendants received any part of the money paid by Bull to Denton, counsel have evidently overlooked the record. Denton testified positively that he paid Sneed and Martin each one-third of the $115, including that which he had received from Bull and from the other parties in the neighborhood, who had been cutting the timber on this land.

III. It is insisted that the court erred in refusing the following instruction:

“The court instructs the jury that if they believe from the evidence that "the money paid by W. D. Bull to James Denton was for the purpose of preventing a criminal prosecution against him for cutting timber from the lands of David B. Wilcox, then they should find defendants not guilty. ”

Upon what theory the defendants insist upon this instruction, we are not advised. Concede that Bull and his neighbors had been trespassing upon the lands of Wilcox and cutting the timber thereon without authority, and that they might have been prosecuted criminally therefor, how does it lessen the offense of these defendants, who were not the owners of the land and timber, that, seizing upon their knowledge of the illegal taking of the timber, they concocted the scheme of extorting money from Bull and his neighbors by representing Denton to be Wilcox and causing him to make a demand for payment for the timber, which neither he nor they were entitled to.' We think the court properly brushed aside this instruction. Whateyer offense Bull was guilty of, it formed no justification for the criminal conduct of these defendants in extorting money from him by means of the false and fraudulent representations and fraudulent simulation of Mr. Wilcox.'

IV. The refusal of the following instruction is assigned as error:

“The court instructs the jury that there is no evidence to prove that W. D. Bull cut any timber from the lands described in the information and they will therefore acquit the defendants.”

This instruction was properly refused because Bull .testified that he had cut ties from the Wilcox land. And knowing that he had, he fell an easy victim to the fraudulent scheme of the defendants, who were also cognizant of his cutting the timber.

V. Defendants also challenge the instructions given by the court upon the ground that they permitted the jury to find the defendants guilty of a felony. No other error is predicated on the court’s instruction. A careful reading of them indicates that they were prepared with much care and with a due regard to the rights of both the State and the defendants. For the reasons given in the first paragraph of this opinion, the court did not err in instructing the jury that, if they found the facts stated in the information and instructions, then the defendants were guilty of felony and punishable by imprisonment in the penitentiary.

YI. There was no error in refusing the instruction designated as “E” for the. reason that the subject of the credibility of the witnesses, including Den-ton, was fully covered by instructions number 10 and 11 given by the court of its own motion.

Discovering no reversible error in the record and the proceedings the judgment of the circuit court must be and is affirmed.

Burgess and Fox, JJ., concur.