243 Mo. 460 | Mo. | 1912
At the February term, 1911, of the circuit court of the city of St. Louis, appellant was tried upon an indictment charging him with having violated section 4765, Revised Statutes 1909, by obtaining from James E. Downs, by means of false and fraudulent representations, the promissory note of said Downs for the sum of $8000. The jury returned a verdict of guilty, assessed appellant’s punishment at imprisonment in the penitentiary for a term of three years, and from the judgment entered upon the verdict he appealed to this court.
The indictment, omitting caption and signature, was as follows:
‘ ‘ The grand jurors of the State of Missouri, within and for the body of the city of St. Louis, now here in court, duly impaneled, sworn and charged, upon their oath present, that Aaron B. Donaldson, on or about the twenty-second day of November, one thousand nine hundred and nine, at the city of St. Louis aforesaid, feloniously, designedly, knowingly and fraudulently, with the intent then and there to cheat and defraud one James H. Downs, did falsely represent, pretend and state to the said James H. Downs that a certain corporation known and named the Mississippi Valley Iron and Furnace Company, and incorporated under the laws of the State of Missouri, owned in fee simple nine hundred acres of mineral lands, located, situated and being in Butler and Wayne counties in said State of Missouri; that the properties of the said the Mississippi Valley Iron and Furnace Company were then and there free and clear of indebtedness and incumbrance; and that the said the Mississippi Valley Iron and Furnace Company then and there was in good solvent condition and had no indebtedness and
“Whereas in truth and in fact the said corporation, the Mississippi Yalley Iran and Furnace Company, did not then and there own in fee simple nine hundred acres of mineral lands located, situated and being in Butler and Wayne counties in said State of Missouri, as he, the said Aaron B. Donaldson, then and there well knew; and,
“Whereas, in truth and in fact, the properties of the said the Mississippi Yalley Iron and Furnace Company were not then and there free and clear of indebtedness and incumbrances, as he, the said Aaron B. Donaldson, then and there well knew; and,
“Whereas, in truth and in fact, the said the Mississippi Yalley Iron and Furnace Company was not then and there in good solvent condition and then and there had a large indebtedness and was largely indebted to divers persons, to-wit, the National Iron Mining Company, a corporation, and other persons to these grand jurors unknown, as he, the said Aaron B. Donaldson then and there well knew; and,
“Whereas, ™- truth and in fact, the said shares of the said capital stock of the said the Mississippi Yalley Iron and Furnace Company were not then and there of the value of one hundred dollars per share, nor worth their par value, as he, the said Aaron B. Donaldson, then and there well knew; against the peace and dignity of the State. ’ ’
As the record contains the testimony of many witnesses and also much documentary evidence, we shall state only such facts as are necessary to an understanding of the questions of law raised during the progress of the trial and now before ns for review.
The evidence for the State tended to show the following facts:
At the time the offense is alleged Jo have been committed the defendant was engaged in the broker
Having thus gained the confidence of Downs, the defendant interested him in mining stocks which he had for sale, and in October, 19091, sold him some shares of stock in the Williamsville Iron Mountain Ore Company and the Black River Iron Ore Company, receiving therefor $35,000. Shortly after this sale was made the defendant arranged for the reorganization of a corporation known as the Mississippi Valley Iron and Furnace Company (hereinafter referred to as the Mississippi Valley Company), whereby he acquired control of that company and of the sale of its stock. One
After Downs was informed of the marriage engagement, and after the. defendant had secured control of the Mississippi Valley Company, the defendant stated to Downs that if the latter would surrender his stock in the Williamsville Iron Mountain Ore Company and the Black River Iron Ore Company and pay $18,000 in addition, he would issue -and deliver to Downs therefor one’ thousand sha,res of the capital stock of the Mississippi Valley Company of the par value of $100 per share. He represented the purchase of stock in the latter company to be a fine investment; that its stock was worth its par value; that it owned nine hundred acres of land in fee simple; that it was free of indebtedness and its property was clear of incumbrance. .. At the invitation of the defendant, Downs
The property of the Mississippi Valley Company was not valuable as mining property. It was worked on a small scale after Downs purchased the stock, but at a loss on every car of ore handled. Only $3500 of the $26,000 due as purchase money'was ever paid. During the summer of 1910 the defendant made a deal with the company whereby all of the property of the company was transferred to him in consideration for services rendered, $2800 which he claimed he had advanced to the company, and an agreement that he would procure the release of the company from all liability for the $22,500 still due as part of the purchase money for which the deed of trust was given. After this transfer was made, “a beautiful suite of offices” constituted the sole assets of the company.
During the period covering his-negotiations and dealings with Downs, the defendant, in selling and at
The evidence for the defendant tended to show the following facts:
The deed of trust for $26,000' was not executed until after the Downs note for $8000' was executed and delivered. The Mississippi Valley Company was not in fact indebted to the National Iron Mining Company, but as the claim was made that it did owe that company $26,000 on account of the purchase price of property, the board of directors concluded that it would be best to recognize the claim for that sum as valid and execute a deed of trust to secure it, which was done. The property of the company was valuable mining property and worth in the neighborhood of $500,000'.
"Witnesses who had known the defendant for many years, as a minister of the Gospel, a mine operator and a broker, testified that his reputation for honesty, integrity, truth and veracity was good.
The defendant testified that the note in question was executed and delivered to him in Assumption, Illinois. He denied that he ever made any representations to Downs concerning the value of the stock; that he ever represented to him that the company owned nine hundred acres of land in fee simple, or that the company was free of indebtedness or that its property was clear of incumbrance.
In his argument to the jury the assistant prosecuting attorney commented upon the fact that the defendant'while on the witness stand had not denied having told Mrs. Bidgeley his wife was a disreputable woman,
I. Appellant demurred to the indictment, and he now assigns as error the action of the court in overruling the demurrer.
In setting out the alleged offense the indictment denies the truth of each false pretense charged to have been made and immediately following the last pretense so negatived, separated only by a semicolon, concludes with the formal language, “Against the peace and dignity of the State.” It is contended that the indictment is defective in that it does not conclude as required by the Constitution. The criticism, as we understand it, is that the concluding clause is limited to the one averment immediately preceding it, instead of referring to and modifying the entire charge. This criticism is without foundation. The Constitution requires that “all indictments shall conclude ‘against the peace and dignity of the State.’ ” The indictment in this case does so conclude and exactly in accordance with the recognized forms and precedents in such cases. [Kelley’s Crim. Law & Prac., sec. 692; Bishop’s Forms (2 Ed.), sec. 418 et seq.]
The indictment is also assailed on the ground that it fails to allege with particularity the contract and agreement between the defendant and Downs, (1) as to the sale by the defendant to Downs of the 370 shares of stock referred to; (2) in that it does not allege that the stock so sold was not of the value of $8000', nor that by reason of the sale Downs was cheated and defrauded, nor that by the delivery of the note to the defendant Downs sustained injury.
A reading of the indictment, set out at length in the statement of facts herein, will show, that four false
II. Error is next assigned to the action of the court in admitting testimony offered by the State, over the defendant’s objections. A number of adverse rulings are complained of under this head. We shall dispose of them under two groups. First, those relating to testimony concerning the statements, letters and conduct of the defendant in pretending to be desirous of marrying the widowed daughter of the prosecuting witness, but which did not directly tend to prove the charge; and, second, the rulings complained of in admitting testimony of representations made by the defendant to other persons, in selling or attempting to sell stock in the same company, after the date of the alleged offense.
In cases of this character, where such devious methods of approach are resorted to in order to allay suspicion and gain the confidence of the intended victim, a wide range in the reception of testimony must of necessity be allowed, in order that the case may be intelligently presented to the jury. In 5 Ency. of Evidence, 744, the rule is thus stated: “All the circumstances occurring at the time of, and surrounding, the transaction in question, are matters proper to be shown for the consideration of the jury. . ... Great latitude has been allowed in the reception of evidence bearing upon this issue. . . . The prosecution is not restricted to the exact transaction as it took place between the prosecutor and the accused, but may-give evidence of acts or statements showing the steps preliminary thereto when tending to show the intent. ’ ’
III. It is urged that the court erred in failing to give an instruction at the close of the testimony, directing a verdict of acquittal. This contention is based upon five grounds, namely:' (1) That it was shown by the testimony that the note charged to have been obtained from Downs by false pretenses was not delivered to the defendant in the State of Missouri; (2) that Downs did not rely upon any representations made to him by the defendant, but investigated for himself; (3) that Downs*had the means at hand of detecting whether the alleged representations were' true or false; (4) that the representation as to the value of the stock sold to Downs was absurd and not calculated to deceive; (5) that there was no evidence that
The instruction was properly refused and (answering appellant’s contentions in the order stated) for the following reasons:
(1) The testimony was conflicting as to whether the note was delivered to the defendant in this State. Downs and Ms daughter both testified that it was executed and delivered in the Terminal Hotel in the city of St. Louis, while the defendant testified that it was delivered in the State of Illinois. - The question therefore was one of fact for the jury and not a question of law for the court.
(2) Although Downs, at the defendant’s suggestion, did personally view the real property of the Mississippi Yalley Company, such' investigation was incomplete and evidently gave him but little information as to the matters concerning which the false pretenses were charged, and he testified that he relied upon the representations made to him by the defendant. That testimony was sufficient to take the case to the jury upon such issue. “It is not necessary to conviction that the false pretenses should be the sole inducement to giving the credit or parting with the property; it is enough if they have a controlling influence, although other minor considerations may concur.” [Kelley’s Crim. Law & Prac., sec. 694.] In Underhill on Crim. Evidence (2 Ed.), sec. 440, it is said: “Whether the representations were calculated to deceive, whether the owner relied upon them as the main inducement, and whether they were known to be false, by the accused, are questions for the jury.”
(3) It is not for the defendant to say that the person defrauded might, by the exercise of vigilance, have discovered the falsity of the pretenses and thus have escaped being defrauded. In the case of State v. Starr, 244 Mo. 161, Ferriss, P. J., speaking for this court and discussing the subject in
(4) The contention that the representations as to the value of the stock were so absurd and irrational in their character that the court should have decided as a question of law that they were not calculated to deceive, we think not well' founded, and is sufficiently answered by the authorities cited in the last two preceding paragraphs. '
(5) There was testimony tending to prove that the defendant, under the false pretenses charged, obtained from Downs the note described, also the value of the note and its payment by Downs. That was all that was necessary for the State to prove to show that Downs was defrauded. [19 Cyc. 411, and authorities cited.]
IY. It is finally urged that the assistant prosecuting attorney was guilty of such improper conduct in his argument to the jury as to constitute reversible error and entitled the defendant to a retrial of the case. The remarks, in part, are referred to in the statement of facts. Others are complained of which we have considered and found unobjectionable, and they will not be discussed.
That counsel for the State has no warrant of law to comment upon the failure of a defendant as a witness to testify upon any fact in issue or to deny any fact testified to by another witness, has been the settled law of this State since the decision in the case of State v. Graves, 95 Mo. 510. The statute upon the subject, section 5243, Revised Statutes 1909, does not in
The question remains, was such error prejudicial to the substantial rights of the defendant on the merits? If not, then this court is forbidden by the Statute of Jeofails to reverse the judgment and grant a, new trial upon that ground.
The testimony as to what the defendant said in his pretended wooing oí Mrs. Ridgeley, we have held competent. It was admissible to explain the relations of the parties and to show criminal intent. The testimony as to what he said in that connection against his wife’s character was of little significance as tending to prove guilt. If he had denied it when on the stand, or had admitted it, what influence would that fact have had upon the minds of the jury? The most that can be said of the prosecutor’s reference to the defendant’s failure to deny is that such testimony, not being denied, was probably true. There was considerable other testimony, intermingled with the business on hand, concerning the defendant’s social relations with Mrs. Ridgeley and her father, including letters written by the defendant. He did not refer to any part of that testimony when on the stand (except that in his testimony in chief he admitted writing to Mrs. Ridgeley v love letter introduced in evidence by the State and be
What has been said in the foregoing paragraph is largely applicable to the other remarks complained of, namely, that the defendant had not denied the testimony of certain witnesses for the State as to similar representations made to them in selling and attempting to sell stock in the same company. That testimony was admitted to prove intent, and by an instruction the jury were told they should not consider it for any other purpose. In returning a verdict of guilty, the jury must have found that the false pretenses charged were made by the defendant and that by means thereof he obtained the note from Downs. These facts being found, the further fact as to the intent with which the false pretenses were made was so clearly proven that we are satisfied the reference to the defendant’s failure to deny the testimony as to representations made in other sales, though error, was harmless and not such as to warrant a new trial of this case.
After a careful examination of this long record, our conclusion is that the defendant was given a fair trial and that prejudicial error was not committed against him. The judgment is accordingly affirmed.