118 Mo. 227 | Mo. | 1893
the January term, 1893, of the. Jackson criminal court the defendant was jointly indicted with one Henry Sleek, charged with feloniously and designedly obtaining from Ludwig Goetz and Henrietta Goetz, his wife,- by means' of false and fraudulent representations, a general warranty deed to lot No. 8, of block No. 63, in Kansas City, Mo., with
The testimony discloses these facts: That on the twenty-third day of April, 1890, Ludwig Hoetz and his wife were the owners of two houses and lots, described as lot eight, in block No. 63, in Eastern Kansas, an addition to the city of Kansas, that they had lived in one of these houses for more than twenty years, and rented the other house to a tenant; that Dr. Flanders, the defendant in this case, resided’ near them, and, had made numerous efforts to purchase this property. These people disliked Flanders and would have nothing to do with him, and refused at all times to sell the property to him. They were poor, ignorant Hermans, and unable to read or write English. On this property were two mortgages, amounting to about $2600. A few weeks prior to April 23, one Henry Sleek, who is jointly indicted for this crime with this defendant, learning of the mortgage upon this property, went to Hoetz and wife and urged them to permit him to secure for them a loan of eastern money on long time, sufficient to make up and satisfy the other mortgages, which they agreed to do. A general warranty deed was presented to them and represented to be a deed of trust to secure this loan of eastern money, and was signed by them and duly acknowledged, which conveyed
The defendant’s first contention is that the indictment is bad for duplicity and that the demurrer thereto should have been sustained. It is contended that the indictment charges the defendant with having in the transaction obtained two separate and distinct articles, real estate, which is one offense under the statute, and signatures to a deed, which is another offense, the punishment for which is different, and that the indictment is therefore double.
After making all the necessary averments as to false representations, the indictment contains the following allegations:
“And the said Henry Sleek and Francis L. Flanders then and there, with the felonious intent to cheat and defraud the said Ludwig Groetz and Henrietta Groetz of their right, title, interest and property in and to said lot eight (8), feloniously and designedly, by means of said pretenses and representations so made as aforesaid, did obtain and receive of and from the said Ludwig Groetz and Henrietta Groetz the execution, acknowledgment and delivery as aforesaid, of the war
Then follows the allegation of the value of the property, and the indictment closes with -the allegation ' of knowledge on the part of the defendant and Sleek.
The section of the statute under which the indict-' ment was drawn (sec. 3564, Revised Statutes 1889), provides that, <(Every person who, with intent to cheat or defraud another, shall designedly, by color of any false token or writing, or by any other false pretense, obtain the signature of any person to any written instrument, * * * shall, upon conviction thereof, be punished in the same manner and to the same extent as for feloniously stealing the money, property or thing so obtained.”
The punishment for such an offense is fixed by section 3541, Revised Statutes, 1889, at imprisonment in the penitentiary not exceeding five years, or in the county jail not less than six months, or by fine not exceeding $1,000 or less than $500, or by both a fine not less than $100 and imprisonment in the county jail not less than three months.
The gist of the offense is the obtaining the signatures to the deed, an instrument of writing with intent to cheat and defraud, and all other averments as to the acknowledgment and delivery of the deed, and the title of Goetz in and to the property were mere surplus-age and of no consequence. If the thing, that is, deed was thus obtained, the offense was then complete. Mr. Bishop (Yol. 1, Criminal Procedure, sec. 479), says that if an indictment is founded on a statute, and it contains allegations covering all the terms of the statute and making a complete offense, and then if it adds something by way of making the offense appear more enormous, the latter matter may be disregarded as
In the case of Commonwealth v. Bolkom, 3 Pick. 281, it was held that an indictment charging an innholder with suffering persons “to play at cards and other unlawful games,” the’ words “unlawful games” might be rejected as surplusage.
The surplusage words employed in this indictment do not in any manner affect its meaning or charge any criminal offense, and should be disregarded. The indictment is not double and is we think sufficient.
The record discloses the fact that on the sixth day of April, 1893, counsel for defendant filed what they called a special plea to the indictment alleging that the grand jury that found the indictment was not legally drawn and summoned, and that their acts were void, asking permission to introduce evidence in support of the plea, which was denied by the court. No exception was saved to the action of the court in regard to this plea, and it cannot now be reviewed by this court: It was too late to raise this question for the first time on the motion for a new trial. State v. Williams, 77 Mo. 310; State v. Burnett, 81 Mo. 119; State v. Foster, 115 Mo. 448.
Objection is taken to the action of the court in permitting proof of the acts and declarations of defendant’s co-indictee, Sleek, done and made in the absence of defendant, before any evidence, as he contends, of collusion or confederation had been introduced. This under the rulings of this court rests largely in the discretion of the trial court. It would be error if such proof was admitted unless such conspiracy was shown
In the case of State v. Walker, 98 Mo. 95, Black, J., in speaking for the court, says: “It is for the court, in the first place, to say whether there is any evidence of a conspiracy, and for the jury to determine whether there was one, and its objects. Again, it is a matter resting largely in the discretion of the trial court as to when that proof shall be offered. The prosecution may prove the declarations and acts of one, made and done in the absence of the others, before proving the conspiracy, provided the proof is afterwards made. State v. Ross, 29 Mo. 32; State v. Daubert, 42 Mo. 239; Wharton’s Criminal Evidence [8 Ed.], sec. 698a. It is therefore not material at what time the proof of a conspiracy was made. ■ A conspiracy, it is to be remembered, can seldom be shown by direct and positive evidence. It need not beso shown. It may be inferred from the circumstances. 2 Wharton’s Criminal Law [9 Ed.], sec. 1398.” •
The evidence shows that Sleek in the first place was pretending to Goetz to secure a loan for him for about $2,600, and while Goetz and wife would have nothing to do with defendant, Sleek had the deed made out to defendant without their knowledge; that he, Elanders, furnished whatever money was furnished, and, as soon as he got the deed, demanded rent of one of the tenants, and began negotiations for the adjustment of other debts, which were liens on the property,
. Henrietta Groetz, a witness for the state, was permitted to testify over the objection of defendant to a conversation that she had with Sleek in his office after the deed was executed and delivered, in which she stated that ‘ 'Flanders was at our place to collect rent. After that I got my son and go up to Sleek and asked him to let me see the papers I signed. He said the papers were with Mr. Flanders. I said what has he got to do with our property? He said he is the man that furnished the money. I told him I didn’t want the money from Flanders. I didn’t want anything to do with Flanders. I told him he was there to collect the rents; what has he got to do with the rent?* Flanders said .he has got a deed, he told the tenants. Sleek said he is just fooling you, you must not believe that; this is just a loan you signed.” There is no question but that this conversation with Sleek and his statements made at the time having occurred after the conspiracy was ended were, inadmissible against Flanders. The common enterprise was then at an end, and no statements made by either one of the conspirators in the absence of the other was admissible as against the one not present. This has been the uniform ruling of this court. State v. Seasholts, not yet reported; State v. Duncan, 64 Mo. 266; State v. Fredericks, 85 Mo. 145; State v. Melrose, 98 Mo. 597; State v. Hilderbrand, 105 Mo. 318; State v. McGraw, 87 Mo. 161.
But the matters testified to by this witness were of
The court admitted in evidence a certified copy of the record of the warranty deed from Groetz and wife to defendant, to which’defendant objected, because not the best evidence, and because the proper foundation had not been laid for its introduction. In prosecutions for forgery, “Before evidence of the forgery will be admitted at the trial, the forged instrument must be produced, or its non-production justified from necessity, as by showing that it is lost or destroyed or not within reach of the process of the court, or is in the possession of the defendant. And, in the last instance, not in the others, reasonable notice must have been given him to produce it.” 2 Bishop on Criminal Procedure [3Ed.], sec. 433. The same rule by parity of reasoning would seem to apply in the ease at bar. The evidence shows that the original deed was in the possession of the defendant, and the law is that he should have been given notice to produce it at the trial,, unless it had been lost or destroyed. Defendant testified that he showed the deed to Mrs. Groetz when she snatched it from his hand and tore it up. She also made the same
There seems to be no well founded objections to the instructions, as they cover every phase of the case and were well authorized by the evidence. ' .
There are some other objections urged as to the rulings of the trial court, but they seem to be without merit.
The verdict of the jury establishes defendant’s guilt beyond a reasonable doubt,, and as there is no reversible error in the proceedings or record, the judgment will be affirmed.