State v. Alexander
24 S.W. 1060
Mo.
1894
Check Treatment
Shebwood, J.

I. No objection is raised to the indictment, either in form or substance and we have discovered nothing objectionable in it.

II. As to the instructions given on behalf of the state, they are such as fully cover the crime charged, as well as such incidental points as are usually touched upon in criminal prosecutions. But one of the instructions thus given is attacked by defendant: the first, and this one, on the singular ground that it does not submit to the jury whether the representations made by defendant were false and fraudulent, but brands them as such, etc. There is no merit in this objection; this instruction leaves it to the jury to “determine from the evidence in the cause,” whether the charge in the indictment was true, that defendant did obtain from Charlotte Mittelberger, a quitclaim deed, etc., by false and fraudulent representations, etc. Besides, this instruction directly *461refers to the ones following in which the matters at issue are enlarged upon.

The instruction asked for "by the defendant will "be adverted to further on.

III. The evidence already recited discloses a ease reeking with fraud from beginning to end. And it is quite worthy of note that defendant nowhere denies making the statements to Mrs. Mittelberger, nor to Stahlhuth as testified to by them, nor does hé claim that they were true. So that thereby he confesses making them and impliedly admits their falsity. State v. Musick, 101 Mo. 260. And it must not be forgotten that along in the summer of 1892, after defendant had been arrested, he endeavored to effect a compromise with the prosecuting witness through her brother-in-law, Stahlhuth, asking the latter, “if he could not persuade his sister-in-law to settle that.” A similar attempt to hush the matter up or settle it was made by defendant with Mrs. Mittelberger’s son. No denial was made by defendant of these attempts and therefore they also stand admitted. It is true that there is some testimony which tends to countervail that of Mrs. Mittelberger and other witnesses for the state, but the latter is so overwhelming as to leave no reasonable doubt of defendant’s guilt.

Indeed, it may be said that the testimony of Hyde is not inconsistent with Mrs. Mittelberger’s, placing, as she did, such confidence in defendant; unacquainted as she was with law and all its technicalities, she may well have concluded that there was nothing wrong with defendant’s statement at the time to which Hyde refers. At any rate, to the jury belonged the determination of the issue of fact and their conclusion is final, unless some error occurred in the admission or rejection of evidence or the refusal of instructions; matters now to be examined.

*462IV. The only instruction refused defendant, was that already set forth. The nondescript instrument referred to in that instruction by reason of the fact of not being acknowledged, conveyed no title to defendant nor for the same reason was it effectual as a power of attorney to him. Revised Statutes, 1889, section 2397; Silvey v. Summer, 61 Mo. 253.

It was the deed of April 5, 1892, and that alone, that conveyed any title to defendant; but it was competent to introduce the first instrument in evidence to show the fraudulent intent which animated defendant at the very inception of the transaction. State v. Myers, 82 Mo. 558, and cases cited. The instruction, therefore, was properly refused for this reason. And in this connection it is proper to say that defendant, having withheld two of the deeds which showed the title to the property to be in Mrs. Mittelberger, is in no condition to take advantage of his own wrong. In odium spoliatoris it will be presumed that the deeds withheld were all that is claimed for them, and that they showed the title to be in Mrs Mittelberger. Pomeroy v. Benton, 77 Mo. 64, and cases cited. Besides, the record shows that the defendant was forced on cross-examination to admit the fact of the status of the title to be as aforesaid. And other witnesses testified orally and without objection that Mrs. Mittelberger paid for and was the owner of the property.

•V. But one question remains and that is whether defendant was properly questioned-on cross-examination. We discover nothing in the questions propounded him contrary to the principles announced in State v. Avery, 113 Mo. 475, to which ease we adhere. Therefore judgment affirmed.

All concur.