THE STATE v. BENNETT WARREN BOWDRY, alias C. W. HALE
145 S. W. (2d) 127
Division Two
December 3, 1940
The case of State ex rel. Lambert v. O‘Malley (Mo. App.), 121 S. W. (2d) 228, is cited by the respondent and also by relators. In that case the St. Louis Court of Appeals passed upon the same statutes now under consideration in the instant case. That court held that, prior to the 1939 amendment, the circuit court had jurisdiction of an action at law to recover the disability benefits provided by said Act, but the opinion shows that the claimant had complied with all the statutory requirements prior to the institutiоn of this suit. In the course of the opinion the court said: “To be sure the board must make a finding of facts whenever such an application is filed with it in order to satisfy itself as to what its own official conduct shall be. In other words, the act itself provides what the right of the member and the correlative duty of the board shall be in certain contingencies, and whеn it is claimed by a member that a certain contingency has arisen, then the board as the body charged with the administration of the act is called upon to make an investigation of the claim for the purpose of ascertaining what the facts may be upon which the law shall operate.” We understand from this and other expressions in the opinion that the court held the view that no right of action accrued to a claimant until his claim had been presented to and passed upon by the Board. Thus interpreted, the opinion is in harmony with the recent decisions of this court. [State ex rel. v. Ridge, 345 Mo. 1096, 138 S. W. (2d) 1012; Glencoe Lime & Cement Co. v. City of St. Louis, 341 Mo. 689, 108 S. W. (2d) 143.] In the latter case we said: “... plaintiff should have pursued the remedy provided by ordinance bеfore seeking relief in equity. If so, plaintiff should have alleged and proved that it exhausted said remedy before seeking such relief.”
For the reasons stated, our provisional rule in prohibition should be made absolute. It is so ordered. All concur.
I. The indictment describes the parties, A. G. Edwards & Sons and Soffer, as their agent, and alleges that appellant, with felonious intent to defraud A. G. Edwards & Sons, represented to Soffer that appellant had met one Roth; that Roth had referred appellant to Soffer, etc.; that appellant had two $1,000 New York Central Railroad Company bonds which appellant desired Soffer, as agent of A. G. Edwards & Sons, to sell for him, and that said bonds (photostatic copies being set out) were genuine bonds of said railroad; that Soffer, аs agent, etc., believing, relying upon and being deceived by said false, etc., representations was “induced to turn over and deliver to” appellant “a check and draft” for $1543.76. The indictment then proceeds:
“That the said Bennett Warren Bowdry, alias C. W. Hale, by means and by use of said trick, false and fraudulent representations, pretenses and statеments and the aforesaid instruments purporting to be bonds of the New York Central Railroad Company, a corporation, obtained of and from the said Ben. B. Soffer, as such agent and employe and the aforesaid persons, doing business as A. G. Edwards & Sons, the aforesaid check and draft, with the intent then and there to cheat and defraud the aforеsaid persons, doing business as A. G. Edwards & Sons of the said check and draft.”
The conclusion alleges that appellant had not met Roth; that Roth had not suggested that appellant see Soffer and transact business with him, as agent aforesaid; that appellant did not have possession of two $1,000 bonds of said railroad which he desired Soffer, as agent, to sell for him, and that the bonds described in the charge were not genuine but counterfeit.
a. Appellant says the indictment did not state all facts necessary to disclose the causal connection.
b. Appellant also argues that the charge that Soffer, as agent aforesaid, was “induced to turn over and deliver to” appellant said “check and draft” does not charge that Soffer “did deliver” to appellant said “check and draft.” State v. Phelan, 159 Mo. 122, 128, 60 S. W. 71, 73; State v. Hubbard, 170 Mo. 346, 353, 70 S. W. 883, 885, and State v. Kelly, 170 Mo. 151, 70 S. W. 477, support appellant‘s position. In the Phelan case the court held a charge that Thomas and Amanda Cain “were induced to then and there sell and deliver to” defendant certain horses was not a charge that said victims did “then and there sell and dеliver” said property to defendant. The court reasoned: “The rule in criminal pleading is ‘that in an indictment nothing material should be taken by intendent or implication.’ ... The phrase ‘induced to sell’ signifies that the defendant ‘moved,’ ‘urged,’ ‘instigated’ the Cains to sell to him, but it falls short of averring that they ‘did sell’ to him. The allegation should have been ‘were induced to sell and did sell and deliver’ to defendant said horses.” The indictment in the Hubbard case was similar and the Phelan case was followed. The opinion in the Kelly case does not set out the indictment, but it follows the Phelan and Hubbard cases. The Phelan case does not discuss the effect of an additional charge in said indictment that defendant, by means of the false pretenses, etc., “did obtain and receive of and from” said Cains said personal property. So, too, with respect to the indictment in the Hubbard case. The indictment in the instant case not only charges that Soffer, as agent, was “induced to turn over and deliver to” appellant said check, but also (as hereinbefore set out) that apрellant by means of said false representations “obtained” from Soffer, as agent, said check. To “obtain” means “to get hold of by effort; to get possession of; to procure; to acquire, in any way.” Webster‘s New International Dictionary. To allege that one, by reason of specific representations by another, was induced to “turn over and deliver” to said other certain property and in addition to allege that by means of said representations said other “obtained” said property from the one (that is, got possession of it, et cetera) is to charge in substance and effect, giving language its commonly and reasonably understood meaning, that the one not only was induced
II. A. G. Edwards & Sons were bond dealers and brokers of St. Louis, Missouri, with connections in New York City. Soffer, an employee, acted as their authorized agent in the transaction involved. August 25, 1938, appellant introduced himself to Soffer, in St. Louis, as C. W. Hale and stated he had been referred to Soffer by a Mr. Roth of California. Soffer had known Roth. Appellant told Soffer he had five $1,000 New York Central Railroad Company bonds he wished to sell and presented what purported to be such bonds. Soffer wired New York for the quotation on the bonds, which he obtained and gave to appellant. Appellant complained of the price but decided to sell two of the bonds at the quoted price and to leave the other three for future disposition. Soffer wired the New York office, giving the number and maturity date of the bonds and asked if they were “O. K.” and if there were any “stop orders” against them, and received a reply, by wire, that “these particular numbered bonds” were O. K. Soffer effected a sale of two of the bonds and paid appellant, by check of A. G. Edwards & Sons, the proceeds of the sale, $1,543.76. Appellant deposited the check in a St. Louis bank and secured the money. The bоnds sold, as well as the three left for future sale, turned out to be clever forgeries or counterfeits of the genuine bonds.
We understand appellant was apprehended in Tulsa, Oklahoma, was returned to St. Louis, and, while under arrest and in custody in St. Louis, was questioned concerning the transaction. He answered questions with respect to his name, age, rеsidence, and his participation, under the name of C. W. Hale, in the transaction with A. G. Edwards & Sons. When asked whether he knew the bonds were fraudulent or not, he replied that he did not care to answer; that he did not want to incriminate himself or someone else, and throughout the questioning refused to state from whom he obtained the bonds.
Appellant asserts the testimony with respect to his refusal to answer and the argument of the State‘s attorney based directly thereon violated his constitutional rights against self-incrimination. The State contends that when appellant answered certain questions directed to him, although under arrest, the whole conversation was admissible, citing State v. Hardin, 324 Mo. 28, 35 (VI), 21 S. W. (2d) 758, 761[4]; State v. Capotelli, 316 Mo. 256, 263, 292 S. W. 42, 45[5]. These casеs treat of outright admissions or denials of fact by an accused. They are not this case. The issue here involves silence on the part of the accused, his refusal to answer being equivalent to silence and not the statement of an affirmative or negative fact.
Statements of an accused, confessions or admissions of facts tending to prove guilt, are received in evidence on the theory they constitute admissions against interest. Silence of an accused under such circumstances that only a guilty person would remain silent may be shown on the theory it is a circumstance from which an inferential admission against interest may be drawn by the jury. It neither raises a presumption of guilt as a matter of law nor is it equivalent to an admission of guilt. But, in Missouri the silence of an accused while under arrest is not admissible in evidence against him as he is then under no duty to make any statement. [State v. Goldfeder (Mo.), 242 S. W. 403, 404; State v. Hogan (Mo.), 252 S. W. 387, 388[1]; State v. Kissinger, 343 Mo. 781, 785 [4], 123 S. W. (2d) 81, 83[4].] State v. Foley, 144 Mo. 600, 613 (II), 46 S. W. 733, 736(2), holds statements made to an accused while under arrest and the fact that he made no reply thereto are inadmissible. [Consult also State v. Weber, 272 Mo. 475, 481 (III), 199 S. W. 147, 148[3]; Rex v. Watson, 2 Starkie, 116, 158, 171 Eng. Rep. 591.] Our Constitution,
Appellant‘s point is well taken.
III. Appellant questions the sufficiency of the evidence. He concedes it was necessary for the State to prove thе falsity of only
IV. The State‘s main instruction, which followed the instant charge, should be redrafted to meet the criticism hereinbefore made of the charge against appellant and permit of the instruction conforming to the charge as redrafted.
V. The instruction on flight, if given upon retrial, might well be redrafted. If available, the State should offer additional testimony on this factual issue. Perhaps an attack against the instruction should receive consideration. It (quoting the essential portions) told the jury that if they found from the evidence, “... that defеndant ... shortly after the incident described in the evidence, fled from his place of abode in this city for the purpose of avoiding arrest ... and trial for an offense, if you find an offense was committed at the time in question and that defendant committed it, then such flight, if you find he did so flee, is a circumstance which may be taken into consideration” et cetera. (All italics ours.) Appellant, contending he resided in Oklahoma, says he had no place of abode in St. Louis. There was testimony warranting a finding that appellant had been registered at the Melbourne Hotel in St. Louis and that about two days after his transaction with Soffer appellant left, leaving his hotel bill unpaid and his luggage at the hotel. There is no testimony tending to establish how long appellant stayed at the hotel. Issues involving one‘s “place of abode” have been presented most frequently in connection with the service of writs under statutory provisions; for instance, authorizing the execution of a summons “by leaving a copy of the petition and writ at his usual place of abode ...” (
For the errors noted, the judgment is reversed and the cause remanded. Cooley, C., concurs in result; Westhues, C., concurs.
PER CURIAM: - The foregoing opinion by BOHLING, C., is adopted as the opinion of the court. Ellison, P. J., and Leedy, J., concur; Tipton, J., concurs in result.
Court en Banc, December 3, 1940.