*1 1919. Yol. Chick. v. issues ease, all material the judg- right for
ment below party. accordingly We affirm the White judgment. CG., concur. Mosley,
PER CURIAM: —The foregoing opinion Railey, C., adopted opinion is as hereby of the All court. concur. judg’es CHICK, THE STATE v. JOSEPH JR., Appellant. Two, April 9, 1920. Division Objections Insufficient to Introduction: 1. EVIDENCE: Indictment. objections testimony, ground to the introduction of on th'e Verbal defendant, charge against indictment fails to offense that the an charge testimony a variance from such constitutes and that indictment, nothing, nor motions to strike avail do made anything. .accomplish testimony out such Sufficiency: set Pretense. The indictment Ealse 2. INDICTMENT: note, charged selling whereby ease, is with defendant out in this by falsely represented a first real lien on he was secured previously actually estate, had been so secured the note whereas by Revised under Section another, is drawn him sold necessary be every constituent fact 1909, and states Statutes by designedly, of a color offense of order to stated another, obtaining intent writing, with false such other. and defraud cheat no there ruled that the trial court Where
3. VARIANCE. proof, review the indictment between variance conclusion, not appeal it will to the same leads evidence while variance. there was such ruled that be Presumption. Where Defendant: Statements INSTRUCTION: testify be- felony, own charged did not defendant, any) (if jury telling “statements half, an instruction true, presumes to against be the law himself himself against himself, said and that what because may believe, believe jury but anything) (if bound are not true are shown such statements disbelieve case,” erroneous. evidence false SUPREME COURT OF MISSOURI. Other 5. -: Transactions: Intent and Motive. An instruction telling that “the introduced as to other trans- evidence *2 your purpose actions is submitted to consideration for of the sole light ,the (if shedding effect) upon and intent indictment, of the motive defendant set out for which trial, purpose,” proceeding is now on no for other then properly motive, erroneous, define intent and was not under the of case. facts Money. -: instruction, False 6. Pretense: Same Check: An charged obtaining money in the trial a defendant of of with the by jury pretense, that, another false the tells such other gave person check, and delivered to defendant a which he after- by currency, charging wards cashed therefor and received the against person, legal same the account such other of then the delivery delivery effect said of of check to defendant was the money, being employed of him erroneous. The is not means merely by money, the vehicle which defendant obtained the receipt of the and the it check of conversion to defendant’s use parts gestae obtaining money. of the res - n : Deception: Mortgage: Duplicate
-:7. Means of First by $1600, the defendant Note. Where sold a note for secured a recorded, estate, and, deed of trust on real which was under the pretense collecting paying etc., interest, taxes, of received back trust, duplicate deed of later sold said note to the prosecutrix, by representing that the note secured delivery mortgage, at the time of deed her same give property, trust did not a first h'er lien on the first but belonged prior purchaser; lien to the and the court did not err instructing. in so duty -: All Law of 8. Case: Refusal It is the Defendant’s. give upon questions the court written instructions all necessary arising jury’s law which are for in- case arriving request verdict, at their formation whether or not a by defendant; for all instructions on the law of the case is made given every but where the instructions the State feature for cover necessary jury’s information, case for it is not error by to refuse instructions asked defendant which cover substan- ground. tially the same Crying: Jury: Sympathy of 9. The oral Admonition. ad- WITNESS: requested jury, monition court to counsel for de- fendant, sympathy not to allow themselves be influenced their woman, State, upon being subjected for the who witness gave rigid way defendant’s cross-examination counsel to her presence emotions cried had to be led herself, compose away until she could full fair in this case, error no can be based reversible incident. v 1919. TEEM, Yol. y. Appeal D. Alonzo from Jackson Circuit Court.—-Hon. Judge.
‘Burns, Aefikm:ej>. Henry Conrad, Henry Jost, Walsh, L.
Frank P. M, Cagey, Bogie James E. M. M. Brewster, B. B. appellant. Aylward for P.
(1) allege indictment fails to assigned Miss Ken the note to either delivered sold, parted Kennedy bought nedy it and or that Miss relying re or fraudulent on the false her for it, fatally' presentations therefore, is, of defendant. *3 support a State v. not' conviction. defective will 484; Mo. Saunders, v. 6131 307; Mo. State Bonnell, 46 Hathaway, Clay, 106 580; 100 Mo. v. State v. State Terry, 501; Stowe, 100 Mo. v. Mo. 236; State State v. 199; Barber, ; Mo. v. Mo. 443 State v. 132 State 1136 Kelly, 129; 151; v. 170 Mo. State Phelan, Mo. State 159 Meysenburg,, 171 v. 354; 170 Mo. State Hubbard, v. in indictment, defect said Because of the Mo. 50. assignment prove saje, transfer, tending evidence (2) There delivery or was inadmissible. note proof a fatal between a failure of variance proof allegations indictment, the being $1,600 received the indictment ev when the State's, United lawful drawn for $2,550, received a check idence showed Savings City Missouri. of Kansas Bank on the Missouri Bouslog, 341; 273 Mo. State v. Munroe, State v. Mispagel, 557; 207 Mo. State v. Castle- v. 73; Mo. State 904; v. 184 S. Wl 201; Rosefelt, Mó. State 255 ton, Shapiro, v. 216 251; 216 Mo. State Salmon, State v. (3) 307. 209'Mo. There 359; Plant, Mo. State v. prejudicial variance between material another proof allegations and the offered in the indictment the indictment forth a support in that set thereof, 54 SUPREME COURT OF MISSOURI.
State
v.
mortgage-bond'
certain
trust, and
note and deed of
proof
promissory
showed a
notes,
number of checks,
interest-coupon
deeds of trust,
notes, documents,
printed
thereon,
conditions
were
set forth
averred
said indictment and of which this de
fendant had no notice until
trial of this cause,
when
by
the same were
introduced
over
evidence
the State
objections
exceptions
of the defendant. Au
(4)
representations alleged
thorities
If
above.
representations
have been made
the defendant were
law,
to the
conclusions of
same cannot
law,
money,
prosecution
obtaining
be
basis
pretenses,
rep
false
and on the
such
hand,
other
representations
resentations were
fact, which
con-,
shown
the record
there can
no
true,
to be
viction. State
Mo.
Cameron,
648;
v.
v. Bar-
117
State
136
bee,
Mo.
Mo.
445;
Lawrence,
350;
State v.
178
State V.
186 Mo.
v.
266
Anderson,
25; State
Powell,
(5)
108;
Mo.
v. Jamison,
State
268
In
Mo. 195.
given by
struction
2'
No.
the court on behalf of the
Kennedy,
erroneous.
119;
State v.
Mo.
Boatright,
State v.
182 Mo.
49;
Steele,
State v.
(¡6)
R|y.,
Mo.
Stid v. Mo. Pac.
398.
In
593;
21316Mo.
given
struction No. 7
behalf of
erroneous.
State is
Mispagel,
207 Mo.
557;
Castleton,
(7)
Mo. 210; State v.
272 Mo.
The un
Small,
warranted remarks,
statements,
comments
ref
prosecuting; attorneys,
erences of the
officially and
*4
specially
personal
employed,
appearance
concerning testify,
of
making
defendant,
failure to
him an
object
personal
pres
of
abuse and
in the
ridicule, made
jury,
highly prejudicial
ence
of
to the substan
rights
tial
of the defendant and were
calculated
deprive
impartial
and did
this defendant
fair
necessitating
trial,
reversal
this cause.
State v.
Graves,
;
proving prejudicial and statements remarks jury were' prosecuting attorney presence deprive the highly prejudicial, to and did calculated impartial trial. right defendant of his fair to a Kring, App*. v. "Wright 76; 21 Mo. State Richmond, v. City, Mo. Wheel 235; 125 64 591; Mo. Rose v. Kansas S. 177 366; Dozier, er 53 Mich. State v. Wallace, v. refusing (9) error committed W. The court 359. dicharge jury at motion defendant’s sustain began to sob E. L. Massie Mrs. witness, the time apparent violently cry rea without aloud, , presence jury. son, Henry Attorney-General, and McAllister, W. Fra/nk respondent; Attorney-General, Assistant Hunt, B. of counsel. B. Kimbrell Isaac
(1)
4765,
4565,
The
is sufficient. Secs.
indictment
p.
p.
1911,
194;
Laws
222;
1909 Laws
;
R. S.
Young,
Foley,
v.
247 Mo.
730;
266 Mo.
State
State v.
(a)
in
The
180
878.
S. W:
628';
Loesch,
State v.
alleges
assignment
note.
State v.
dictment
484;
63 Mo.
Saunders,
State v. giving in trust, evidence of notes and checks deeds of other than the indictment, instruments forth set question prove were intent, relevant and to very charged. necessary It was not for the crime pleader forth the set the indictment. evidence Hyde, Bailey, State 284 Mo. v. 226; State 190 Mo. v. Bayne, Myers, 280’; 82‘ v. Mo. 88 562; State v. State 609; Mo. "Wilson, State v. Mo. State v. ’3145; 143' Rosen berg, 162 266 3-71; Mo. 502; State v. Katz, Mo. State v. 271 Mo. Patterson, 109; v. 273 Hill, State 387. Mo. (a) representations appellant The re were presentations! past existing as to events and facts representations shown be false; and were not representations law; nor were the made as facts which were shown to be true. 230 Nord, State v. App-. 660'; Mo. 429; State v. 171 Mo. Krouse, State v. Evers, 49 545;; Mo. v. 66 Mo. Yorback, 172; State DeLay, (4) State v. Mo. 93 102. Instruction 2, No. given on is State, not erroneous. It sets behalf general charge, forth the in bottomed required every jury dictment, find element properly crime before it convict. could sub question conspiracy. mitted the Sec. R. 4565, 1909; S. Keyes, Sykes, 196 v. Mo. State v. Mo. State 191 161; 239 411; Mo. rel. v. Ice 78; Potts, ex State (5.) given Co., Mo. 219. 246 Instruction No. the State, states law. State v. Hoshor, Pac. 67 (6) 388-. remarks of The counsel do not warrant y. Hughes, reversal of this case. State 271; Mo. 258 Prunty, (7) v. S. W. 97!. remarks setting court do not warrant aside verdict. Hughes, (8) 258 Mo. 271. The court did discharge refusing err in because crying of Mrs. Massie. Joseph MOZLE'Y, a Chick, indicted Jr., C. grand jury in the Circuit Court of Jackson
County, charged Missouri, ishe representation pretense feloniously use of false Yol. *6 y. Kennedy the sum $1600. P.
defrauded Miss. A. I. day 11th on the court He tried in said before September his and convicted, and term, 1918, punishment years penitentiary. in the at two fixed filed new trial and in arrest were Motions for exceptions by action court, overruled preserved. regularly on duly The ease is here were appeal. defendant’s Kennedy teacher
Miss. A. P. I. was a school taught thirty years. for more than She had been had City; taught thirty years in Kansas she for country City. going Defendant had to Kansas before gone country small to her when was a school boy, known him she knew and she had since time; great respect family and, and had them defendant’s perseverance By for the defendant. dint also, years saving thirty during the of her had, careful she together gotten scholastic work, $2600 $2500 money. City Kansas The defendant had also moved to ‘‘ operating known as the Invest business Chick operations Company,” entire con
ment (he stock) cern were his hands all owned performed personally by were him or under his im supervision appears from mediate and direction. part was to notes evidence that business sell mortages approved by secured first estate to real they thought customers desired make what were who repre (and safe such were investments investments safe) by sented him and make the amount be thus until note interest would fall due and invested earn by Kennedy paid maker thereof. db- off Miss defendant, her in this wise sired with invest earnestly so, fact defendant her do solicited 16, sold her two notes on December resulted that he told her were secured 1914, first mortages. testimony This transaction detailed Kennedy as follows: of Miss SUPREME COURT OF MISSOURI. Chick:
£ ‘ dealings you him. Did with Q. business (defendant) you whether or had about —state month I December, 1914, 1914? A. December bought two from him that he told me secured *7 railing; that railing; came to he me outside of meet that Winship railing where was back of Miss he came to meet me. building?
££Q. You mean the Scarritt A. private Yes, sir; not in his office. your meeting
£iQ. Then was his office in building? Yes, Scarritt A. sir. county In
££Q. what and state is A. that located? County, Jackson State of Missouri. occupy What
££Q. officesdid he at that time; there is,' what floor were the located how offices many occupy, signs rooms did he and what were on you the door as recall. A. theAt entrance ££J. was' Company;” entry large Chick Investment a hall right you from the hall into entered the office. you Company’s
££Q. Were Investment Chick office? A. sir. Yes, you Did
££Q. talk with there? A. sir. Chick Yes, you say ££Q. What did to him he and what did say you? I A. told him I had come for the $1600 bought due (a prior on a note I had from him trans action) paid which he with interest due thereon and urged he you me re-invest him, with will somebody you ought take that to else let in me it. I vest collected the note which with the interest deposited I amounted This $1648. the bank and my it ran cash to available little more than $2500. 1919. Yol. 282 you have did after this conversation “Q. Now, of cash amount him' about second conversation with you between sir. Yes, had available? A. telephone I had December, 16th of 2nd consider; would I told him him, conversation I consider would I him I me. told could he show secured had *8 properties against had ? A. He said he first those had mortgages; that he would were and that class first protected. the was' me house see that I He showed at buying a it was well worth 3806 Olive and showed on I him I did for this house. told note $1600 enough the to as. investment, make the money together get aggregated all I could $2800, two sums arrangement the An was was $2500.” g,ave personal her for defendant note witness $300 representing ac- $2505.14, her for check $5.14 my gave personal note crued on the “I interest $2500. personally, and two to defendant the check property trust, one and the deeds the Bellefontaine of property, together street with the fwo other Olive defendant were secured mort- notes that first SUPREME COURT OF MISSOURI. age, by; kept me, handed to was the abstract hut ground, it defendant on he office, said, as receipt gave would be him, he me safer but for it.” paid The December, check defendant was drawn of De- 15th, on the delivered defendant 16th day, cember, 1914, deal on closed was that Company. by the Chick cashed Investment (cid:127) proof sequel story, further shows, day that Mrs. E. T. had, Massie the 9th December, of bought from defendant identical note and deed of subsequently Kennedy trust which he assured Miss selling* paid he following to her, and for it was with the check: City,
“No. 65. Kansas Mo. Dec. 9th, Exchange “Western Bank. City, Mo.
Kansas “Pay to the order J. Chick Investment Co. ($1600.00) Sixteen hundred and dollars. no/100 “E. T. Massie “E.' M.” paid This check was cleared and marked got Chick named therein. the time At receiving gave he Mrs. check Massie real-estate- brought day bond note and in two home the her pre- securing deed trust which, the same caring’ looking text for it and insurance, taxes, after her allow him etc., induced to take him to her, this enabled deliver it later Miss Kennedy, which he did.
On the 22nd of November, 1915, Invest- Chick collapsed, Company ap- ment and Hunt Moore C. pointed During its receiver. course receiver- ship developed largely had en- been gaged duplication
The defendant admitted to the receiver that Miss duplicate Kennedy’s original note was of note. (cid:127) Vol. y. Chick. deputy exception recalling Morrison,
theWith of J..R. testimony, no offered witness, defendant recorder, as a by the State* hut stood on his case made demurrer to the testimony only course to The Morrison related of handling as to business the recorder’s office of delivery recording' to their of of trust and deeds and the owners. is the court
The demurrer was overruled assigned here error defendant. Appellant charged court the credit of
I. has alleged errors nisi the commission of one hundred points the trial of -the determi- case, but we think brought may much native this case within of (2), good? scope: (1) narrower Is indictment jury properly (3), Is instructed, Were the justify finding, testimony the de- sufficient to iipheld; guilty? conviction should be so, fendant If remanded. if-otherwise, it should be reversed and but fatally Appellant the indictment contends that support (he and will not a conviction because defective assigned says) allege that defendant sold, it fails Kennedy, note- to or- Miss Miss delivered Kennedy bought parted it, with her for representations relying or fraudulent on the false defendant. quote, necessary
II. far as indictment, so reads as follows: grand jurors “The for the State Mis - impaneled, charged inquire duly sworn and
souri, County body Jackson, within present Joseph Chick, their oath one in full whose is unknown Jr., name to said Christian jurors, day on at December, 6th n c men’ County Jackson and of'Missouri, contriving, designing intending to cheat and de Kennedy goods A. I. one P. her- fraud and chattels - -property, personal apply request did Kennedy purchase said A. P. I. from him, purported Joseph what Jr., to be a Chick, first- S- *10 . SUPREME COURT OF MISSOURI. Chick. r. mortgage the said Jos- note, real-estate-bond he, which eph possession Chick, S. and there had in Jr., then his Joseph under his Chick, and and the said S. control, unlawfully, feloniously Jr., did then and and there de- signedly, with the felonious intent then and there to Kennedy cheat and A. I. her defraud the said P. money, goods, personal property, and chattels and re- present, pretend say Kennedy and to the A. P. I. said first-mortgage that said real-estate-bond note was then there a first secured deed of trust on follow- and premises, ing property property [Here and to wit: Kennedy Miss which took the two notes herein described.] referred design
“And to further effect his to cheat and de- money, Kennedy goods, the said A. P. of her fraud I. personal property, Joseph and he, the said chattels S'. feloniously unlawfully, did Chick, Jr., then and there designedly, with and the felonious intent then and there Kennedy to cheat -him, and defraud the said A. P. I. money, goods, personal property, of her chattels and Kennedy exhibit and show to the said I. A. P. a certain first-mortgage real-estate-bond note and deed of trust Joseph pos- he, which the said Jr., S. Chick, had in his first-mortgage session under control, and said real-estate-bond and deed note of trust is as follows: [Here full.] same is set out Joseph
“And S. Chick, the said Jr., did then and unlawfully, feloniously designedly, there and with the felonious intent then and there ohéat and defraud Kennedy money, goods, said P. I. A. her chattels property, represent, personal pretend and say to Kennedy first-mo.rtgage A. P. I. that said ‘the said real- note as hereinbefore estate-bond set out described genuine then and there true first-mortgage note, and was real-estate-bond then and' there the first- mortgage real-estate-bond note described and referred of trust in the deed heretofore out in set the indict- said'first-mortgage ment, arid that bond note was then genuine subsisting true, there first claim Yol. against property described
demand hereinbefore set out the indictment. Kennedy, believing false
“And P. A. I. said pretenses so made and fraudulent statements and Kennedy, by him, A. P. I. her, aforesaid said Joseph relying there- Chick, Jr., true, S. thereby, being induced reason deceived pay, pay, to the said thereof to and did then and there Joseph dollars, the sum of sixteen hundred Chick, Jr., *11 money six- the. the of States, lawful United of value of money, goods, and teen hundred of the dollars, chatties personal Kennedy.. property A. P. I. of the said Joseph by Chick, Jr.,
“And said means and the S. by of false and use the and fraudulent statements pretenses her, said P. made as A. aforesaid the so Kennedy, Joseph by did Chick, Jr., I. the said S. him, feloniously unlawfully, designedly, and then there and with the intent and there cheat and felonious then money, goods, Kennedy, her the A. P. I. of said defraud personal property, chattels' obtain from and of and Kennedy, P. I. her, dollars, said A. sixteen hundred the money lawful of States, of the United the value six of money, goods, dollars, teen chattels the hundred. Kennedy. personal property of and said A. P. I. in truth and in “Whereas, said first- fact, mortgage he, real-estate-bond which Jos- note said eph Chick, Jr., there then and exhibited showed S. and Kennedy, P. to the A. I. then was not said there genuine first-mortgage a true and bond note described to in referred deed trust hereinbefore set was indictment, out this not then and there a genuine subsisting true, first claim demand against property hereinbefore and described set out Joseph which Chick, indictment the said he, S. against peace knew, w'ell there Jr., then dignity State.” body
Set forth the indictment is the assignment following and transfer defendant of question Kennedy: to Miss note SUPREME COURT OE MISSOURI. >
State Chick. “For value The Investment received J. S. Chick assigns hereby Co. note and transfers this bond. Kennedy to recourse, Amanda P. I. without order, g-ether rights all the deed interest under its securing trust same. J. Co.
“The Chick Investment
“By Jr. J. S. Chick, ’’ Pesident. testimony Kennedy III. Miss shows that together with the note trust, and deed of note property, and deed of on the Bellefontáine was trust 16th office, to her delivered day of December, 1914,' was the time paid to defendant and the deal closed. objected testimony This to because the in- charge against defendant, an failed to dictment offense testimony and that such constituted variance from wa,b objection made in indictment. The properly overruled court and we think so. Such objections testimony introduction verbal- ly during nothing, courbe avail nor do trial any- accomplish testimony motions to strike such out *12 thing. just is the same as if neither made. been had
This condemned court declined to tolerate has practice. such In 180 the case of v. Loesch, State repeated it was “The 877, said: counsel efforts W. integrity for assail or indictments objection by oral thereto, informations avoid thus requirements frequently of the statute, been condemned this court and termed in ‘innovations ’ ” practice which will not tolerated. be subject IV. Is indictment assaults made upon by defendant? 4565, Section it Revised Statutes (cid:127)'provides Every person 1909, that:“ who, °f with ^tent to cheat or defraud another, fi^S. designedly, by any .shall color of false token writing, any pretense, or or other false . . . money, any personal any property person obtain from Yol. 282
State Chicle. v. . . . or thing other valuable or whatsoever effects . punished by . . imprison conviction be shall exceeding ment penitentiary in not a term years.” seven think the
We indictment the case hand provision drawn under 4565, Section and that every it necessary constituent fact states to be stated sa,id under the offeh.se denounced .section therein) against subject defendant. Nor is it to the abjection constitutional made, fails, to advise defendant of “nature and cause accusation’’ against him. [State 875; v. State Loesch, 180 S. W. Terry, v. l. c. 601; Martin, Mo. State v. 226 Mo. 548; State 143; v. v. Sam Woodward, 156 Mo. State uels, 144 Mo. l. 68; 557; 245 Mo. c. Chissell, State v. Myers, Vandenburg, State 558; v. v. 82 Mo. State Kelly, Mo. v. Hub 170 Mo. 230; 151; bard, 346.] 170 Mo. good,
We, hold that therefore, indictment is' against appellant. , rule the contention alleged As to V. variance between aver proof offered merL^s lb.e indictment and variance support thereof, Revised 5114, Section Stat provides utes as follows: , felony any trial . .
“Whenever on the appear any there shall variance between state- be , any of- ment in . indictment . the evidence .and proof descript- fered ... thereof the name or whatsoever, thing ion of matter therein named . described . . such variance shall be deemed grounds acquittal defendant, for an unless the court which the trial shall had shall before find is material the- such variance merits of thé case and ” n (cid:127) defendant, prejudicial the defense of the Jackson, In the 221 Mo. c. 506, l. case of *13 precise question passed the here raised was on, and Judge speaking for Pox, the court, that it had expressly in Carragin, been! ruled the case v. State Sharpless, 210 v. 351, Mo. Mo. l. c. 202, MISSOURI. SUPREME COURT OF having that to find there failed that the court circuit infor any in an omission the variance, was material genuine of the defendant indorsement mation of the ground judgment. the for the reversal of furnished no In Foley, l. the! Mo. c. this case upon question passing in of variance announced court, law follows: urges strenuously counsel “Defendant’s learned charges contained that there is a variance between proof support to in second and the adduced count charge; indicted- for obtain this that defendant was ing ‘twenty of the United dollars lawful proof States,’ While showed obtained city City ‘warrant on of the treasurer St. Ltouis twenty It'may dollars.’ well the value of be doubted, has evidence, whether the facts contention testimony shows that merit. The the voucher '(called by of the first witnesses, some count prepared ‘warrant’) of the indictment was stamped ‘City City there Auditor; office Aud with the the voucher Office, surrendered;’ itor’s receipt 'appended passed., by then Was the Auditor’s City the de Treasurer, offiice the office of where signed paid; when he that he fendant called came to be appended receipt, in the form of wrote his name got an indorsement on back of the voucher, and paid twenty, question. dollars in voucher was day stamped ‘City issued, the same for it was was September Treasurer’s 'Office, 30, 1910, Louis, St. payment Missouri.’ After voucher was returned being stamped, filed, the Auditor’s Office and ‘Paid Hodges, filed, first, 1910, October W. R. Auditor.’ impelled we From are facts, these the conclusion delivery that the of voucher defendant, it ever physically was delivered him, but a mere detail ip twenty of the manner which he obtained dollars question. part .'in inwas, That it sense, all but n gestae. res prejudiced,
“If such hurt accrued requires of a him reason variance. The statute *14 OCTOBER-TERM, Vol.
State v. Chick. alleged tbe attention be called matters variance to neglected are not Having do so of tbe court. we bound find we cannot more since so, to consider it the now, rights prejudiced defendant’s from the facts that by were alleged at the we look variance, reason of the when ’’ record. whole alleged Appellant point be variance raised proof charge the, ad tween in the indictment support tried thereof,'but duced the court which question submit w'as and to case variance Looking ev at the existed. ted that no variance found any variance idence as a are unable find whole we proof adduced between the made and. according agree ruling We, nisi. of .the court ly, point against appellant. , rule the jnstructionls complains Appellant 'the
VI: of all (fifteen given by and character number) iState, ’ reversible, izes éach of them error. cannot be We as pre lieve that counsel is serious but this contention, assignment, (together fer rather this conclude attempt ninety-nine) with the other was an not to allow supposed escape any error error to review this court. merely jury in-
Instruction 1-a told given were the of the case and that law structions proven duty apply was their to the facts law given accordingly, and return their verdict not other- instruction wise. Comment would'be waste of time. finding submits No. 2
Instruction of vthe fori jury, beyond every a reasonable doubt, element of the charged against crime defendant —whether the false pretenses statements Kennedy, were made to Miss upon whether she relied them and was deceived there- an(l on account thereof was to, induced Pretense ’ Faise part pur and did, with her note and deed of trust; chase truthfulness representation pretenses ‘and properly of said fal and that defendant at the time sified knew OF MISSOURI. SUPREME COURT to exist found facts were if these untrue, false and charged and guilty as the defendant Ifind would pen imprisonment punishment the State at assess his than seven nor more itentiary two less than for a term not properly submitted years. this instruction think! We jury. the issue to presumption No., of de- 3 is
Instruction *15 charge against if him, the innocence of fendant’s! of jury doubt defend- reasonable had the Presumption aquit in- guilt they him. would This ant’s Innocence, of proper no one and was is a there struction giving in it. error approved instruc- 4 is the usual and
Instruction No. judges jury of the sole the the effect are tion the that weight credibility and the witnesses, given of the Credibility of testimony, their value to Witnesses. subject objection by and is made the appellant. any) (if by No. 5—that statements
Instruction against presumed himself the to be true, law defendant against what he for him- himself; said said because (if anything) jury not bound the
self may jury but the or disbe- believe, believe Against^eif. they lieve statements such as are shown to be by nothing true or false in the evidence the There is ease. wrong with this instruction the committed court giving no error it.
Instruction reads: No. 6 “The court instructs jury the evidence introduced as to other trans any, your is actions, submitted to consideration for purpose (if light shedding the sole of have .that upon effect) and motive the intent of the defendant set
out information in- [indictment] ^or ke is now on trial, and for no oase> Offenses. purpose. other pro then instruction (cid:127) ¡define and-, properly (cid:127)intent motive.” ceeds We under the of this hold, facts case, that the court did giving not-err in instruction. said No. Instruction 7 told the that if Amanda P. I. gave Kennedy (on and delivered to defendant the 16th Yol, v. 1914) more,
day $2505.14, check December, of and received check and that he thereafter cashed said against currency, charging the same therefor cash, Kennedy, then I. of Amanda P. ^ie Check delivery legal check effect of Money. delivery him was the her to defendant in- you think this find.-” W?e should so pointed enough, as out since instruction well merely Foley, supra-, means, it case g'ot money, cash vehicle, Traders instant at which defendant case, did day on the 17th Bank, December, National day think, delivered to check was him. We next after receipt Foley cheek that the case held part was a the res cash into conversion money, gestae obtaining instruction that the given. properly duplicate 3No. Instruction No. is a Instruction of) presumption until innocence defendant’s proven guilty beyond doubt. reasonable *16 Duplication. necessary duplicate this to- not it was proposi- jury yet same it to the instruction submits language. in the same We as No. couched tion think is possibly prejudicial could result there- harm no ’giving not error. is reversible and that from jury that informa No. 9ladvises Instruction evi (indictment) formal a mere no is tion they guilt care and that would defendant’s be dence of influenced themselves be on account to allow to ful not complains Appellant indictment. that Indictment we instruction is reversible error, but As Evidence. agree unable him. think to are We the instruction is a correct been and should one given. Kennedy
from the evidence that Miss Amanda P. I. jury they Instruction No. 10 told the that found if parted upon money with her the faith of the note and MISSOURI. SUPREME COURT OF' y. Chick.
mortgage upon representations and not any, if he did defendant, made make Representations. Vthe guilty. De they would'find defendant not objection regard fendant’s this instruction cannot be ed otherwise than frivolous. representations,
Instruction No. 11 that the false any, purpose obtaining not Amanda, Kennedy sum of I. from Miss P. rely that she in- not thereon, and that not did she was thereby part property, duced with her then would acquit perceive why axe We unable .defendant. appellant objects may this but instruction, whatever objection utterly have been his we think the with- idea, out merit. objection
Appellant’s not to' Instruction No. 12 is capable being understood. in reads: “The court jury that the stxucts defendant is fair entitled ato impartial except trial he cannot be convicted guilty beyond ^16 doubt, reasonable Pr°ven Trial Fair facts circumstances from noth ing reasonably suspicion can be than a inferred ’’ might guilty, justify objec will not his conviction. His implies tion oppos to this instruction the idea that he having impartial opposed ed to a fair and trial and allowing jury suspicion to act guilt. mere of his appellant respect differ from We and notwith standing objection, we hold that he was entitled impartial pre trial fair and that there was no judicial giving committed error of said instruc tion. No. 13
Instruction told the that it devolves on the State to the evidence show to the satisfaction of jury beyond *17 every doubt reasonable fact material necessary these under instructions is which to constitute the offense with which the defendant stands EveryMaterial anc[ 0]larged, jury if the have reasonable arising insufficiency
doubt from the any evidence of the existence of material fact was it Yol. no error duty acquit There the defendant.
their giving instruction. giving No. any Instruction error was there Nor not wilfully and intentional mean defined accidental. court committed error that the think
Nor do we bought the giving No. 15'. Mrs. Massie Instruction If original covering the deed of trust $1600,and the note of premises on at 3806 Olive Street Mortgage.
irst qqth day deed' ^ of December said j_e£ore prop- had a.first lien on said she recorded, of trust was Kennedy’s erty. note and the identical deed Miss taken trust first delivered to Massie, sold Mirs. looking pretense after under the back defendant paying property, making collections, taxes, etc., said day December, Kennedy the 16th to Miss delivered interfere with women, as between these not, would prevent rights property, prior Mrs. Massie’s nor Kennedy’s duplicate being not note Miss from first-mortgage genuine bond note secured deed of trust. carefully instructions thus reviewed th©
We given by we have reached the conclusion the court necessary every for feature cover case jury’s enlightenment. twenty instructions defendant asked The
VII. give. 20', number last, which the court refused upon jury request court instruct each that the controversy, every phase involved in law requested be omitted whether same requested and the counsel, court asked ofU císe attorneys point out given would be instruction desired stated already given.. been law had duty give of the court such to’ ;or requested' whether instructions, not,
written necessary questions arising in law the case which are giving [Sec, '5231, information verdict. for their their *18 SUPREME COURT OF MISSOURI. Chick. proper 1909.] R. S. But it would court b'e for the beyond though go requirement to the statute, even the. given case) (as request blanket in the instant required given to do All so. that is that instructions be every covering necessary the feature of the case for jury’s giving in their information verdict. carefully have examined
We the re other nineteen fused instructions and have the reached that conclusion they properly peremptory were refused. All instructions covej; properly were substantially the others refused ground the same as the instructions for the State. right has that been the defendant no held has to the have duplicated, State’s instructions [State v. Guinn, 680.] Mo. It is manifest that such to course would-tend jury ap the rather than confuse to make clear law plicable to the case. We hold that the err court did not refusing give to instructions. Appellant complains judgment "VIII. that alleged improper should reversed account re- marks made for counsel the State, and because quash panel, court to refused reason that being subjected rigid one while witnesses, to a gave way cross-examination defendant’s counsel, presence jury, her cried emotions and of the temporary in her resulted withdrawal from the witness composure regained. her stand until improper remarks counsel we are As unable to any part discover, made, were failure if on the objection promptly an sustain court to and- thereto keep< admonish counsel within the record and direct disregard jury such statements. Under facts improper, they of this remarks case, would prejudicial justify not be error sufficient reversal the case. following
Upon quash panel the motion to transpired: charge jury I move the
“Mr. Brewster: court to disregard duty incident, absolutely that isit their this Vol. 282 lady, crying
that is, ánd to they right any sympathy that no to let slightest may weigh hit for her feel them the sympathy making up* case, is, their verdict *19 crying!. because of charge “The to Court: want me you You mean n
them or verbally, instruct them? ‘‘ Charge verbally. Mr. Brewster. : them “The come bacfcl Right Court: when now, conduct “Mr. that Yes, sir: also Brewster: ydtness prosecutor carryinjg from the assistant improper. the chair and from the courtroom is (recalled). 'Etta “M!rs. Massie you recov “The have Mrs. if Massie, Court: Now, you enough strong go with ered and think that on are to will testimony any break down we more, not thing proceed, we that law, otherwise can’t. Under the ought a woman not occur court room. tears of sympathy always excite a man to and is calculated arouse place for not her, room, and the court is course, nerve that. will that now You have to avoid ques yourself go through up to this answer with lawyer propounds you, you think if tions that the you to ¡go any more brealdng able on are to without down you have proceed we will will with case. course, Of particular you very to tell time and want to some we cry any and not more. ‘ ‘ try just nervous- : I not. It was The Witness will ness. nothing cry You to about. Court: There is
“The perfectly lawyer. Mr. being fair are treated to saying thing that calculated Conrad wasn’t you way you will going to. If arouse just questions answer, are, what and then listen to you jury. get right. along may bring all You will Proceed. “ Jury Present. say Jury, Gentlemen'
“The Court: I want to you impression you may whatever that have had made MISSOURI. OF COURT SUPREME Chicle. you by lady breaking on whatever down, reason of anything, -kind, feeling or whatever reason or regard lodgment may your it, mind found you you one affect must not allow it to it, eradicate way or commenced the fact down and other, broke she crying. anything case; That hasn’t do with the any- you way must not impression or have affect one or the other, directly in- you way one other, or the n : directly. p objects The, fact “Mr. defendant Brewster: complied only partially motion that the court with the jury, ex- to the as. cepts, (Interrupting): Anything if “The left I out, Court my you give it is it I will will call to- attention proper. you
“Mr. I instruct them asked *20 Brewster: reference to the conduct counsel. of attorney you gentlemen “The an If saw Court: anything standing saying tak- her, her, here or or to- way ing away, any her that effect one must have Mr. the other. Conrad.” Proceed, agree in We with the action the trial court of assignments. premises, and overrule judgment The verdict of the and sen- regular proper tence the court are in form. charg- been defendant has convicted of the crime against ed him which he committed circumstances under honesty, upon sorry commentary that furnish a his uprightness advantage integrity. one He took thirty years whom he than had had known more prompt every reason which would an honest to deal man honestly but he her, misled and overreached her representations his false and fraudulent her induced give gave nothing him her in return. her guilt abundantly That his is evidence established we think he have no doubt. We has had a fair trial, should be sentence affirmed. ' 1919. Yol. Co. Gibson.
Real Estate & Loan v. Bailey, notG., Wihite, G., concurs; It is so ordered. sitting. opinion foregoing
PER CURIAM:—The Mozley, adopted opinion hereby All of court. is C., judges concur. COMPANY, LOAN REAL ESTATE & MISSOURI Appellant, MARY BUCHANAN GIBSON J. COUNTY. One, April 10,
Division 1920. Against Mortgagee A Suit lien for taxes 1. TAX LIEN: Alone. mortgagee, upon a out be land in suit which cannot fastened possession, alone is made defendant. A.mortgage, or a deed of trust MORTGAGE: Estate Lands. given payment mortgage, of a land to secure the nature analysis, nothing is is, more. debt its last lien and right land, beneficial' interest neither an estate nor a jus reru; intangible, therein; jus it it is is neither in re nor ad so assigned, sold under execu- it be nor levied cannot debt, merely right cution; is not otherwise paid, satisfied out the land. Against Mortgagee Tax Lien. 3. —:-: -: Suit Alone: Under any “right, 8711, having no one Section Revised if sought Statutes charged title, With interest or estate” the land defendant, special party *21 the court lien' tax-bills is made subject-matter. jurisdiction wholly The statute without special judgment provides sale in such case right, title, estate” thereof all “the interest and execution vests discharges purchaser the lands in the “and from the defendant mortgagee, a mere liens or thereof.” But encumbrances que aof mort- the gage, trust in a' deed of trust in the cestui nature possession, land, no interest out of has no estate against cannot sold, alone that can be a suit taxes him tax, subject be maintained. is the land that is Mills, mortgagee’s [Distinguishing Walker lien thereon. 684.] Mo. notes mortgages. first you Had ££Q. had conversation him about with a business matter about the 1st December of that year? A. The 2nd A of December*. note was secured. you go Did “Q. to where he was and talk him? A. sir. Yes, you Why, ££Qi Where did see him? A. outside
Notes
he notes it and he could come out if mortgages and show places, come he could out first appointment to meet at me and an me, 2nd and between 6th noon, house at school he called. December, 1914, places, you g’o all? at “Q. How did see Bellefon- in car. me He took He took A. me faced one Belle- there, there were houses taine; two him I Howard; I told fontaine and the other faced facing Bellefontaine, but the house would would consider other all. not consider the at mortgage you tell the amount Did “Q. he you you A. one consider? $1200. on the would you go? A. did Olive. Then where “Q. To you A. Not Edward Yan Osten? “Q. Did know prop- not tell me who time. He did owned at that erty me. he had shown paper say about the sort of “Q. did he “W^hat
notes described Kennedy’s deeds trust and Miss note was a duplicate note and not the he had her he assured Was Belling to her.