178 Mo. 350 | Mo. | 1903
The defendant was tried at the November term, 1902, n the Grundy Circuit Court upon an information in four counts.
The conviction was upon the first count, which charged the defendant with an attempt to obtain by false representations and pretenses a school warrant of the ■value of $37.50 from incorporated School District Number Eight, Township Sixty-one, Range Twenty-three, in Marion township, Grundy county, Missouri, and from C. D. Axtell, C. E. Banta and Ed Urton, the di■rectors thereof.
In another count of the information defendant was
The first count in the information, upon which defendant was convicted, omitting caption, is as follows:
“Comes now Hugh C. Smith, prosecuting attorney within and for Grundy county, Missouri, and on his oath of office informs the circuit court of Grundy county, Missouri, by this, his first amended information, that on or about the 26th day of January, A. D. 1901, at Grundy county, Missouri, one W. B. Lawrence, then and there being, then and there with the intent then and there unlawfully and feloniously to cheat and defraud, then and there unlawfully, knowingly, designedly and feloniously did falsely, fraudulently, designedly and feloniously represent, state and pretend to' C. D. Axtell, C. E. Banta and Ed Urton, then and there • being and constituting the duly elected, qualified and acting board of directors of School District Number Eight, Township Sixty-one and Sixty-two, Range Twenty-three, in Marion township, Grundy county, Missouri, a corporation organized and existing .under the laws of the State of Missouri, of which said board of directors, C. D. Axtell was president, and C. E. Banta, clerk, that the said W. B. Lawrence was then and there the duly authorized agent of the educational department of the State of Missouri to introduce, sell, deliver and receive payment therefor a certain set of books, known and designated as supplementary reading and reference books, and being fifty volumes in number, to the various school districts of the State of Missouri, and that he was sent out by the educational' department of the State of Missouri for the purpose of introducing and placing a set of said books in each of the school districts of the State of Missouri. That the fifty volumes of books that he was selling and introducing as aforesaid, had been selected by W. T. Carrington, State Superintendent of Public Schools for the State of Missouri, and approved by the State Board of
G. D. Axtell, testified on the part of the State, as follows:
“I am forty years old; am a farmer; live at Dunlap, Grundy county, Missouri, in district No. 8, township 61, range 23. I was president of the school board at that time; Charley Banta was the secretary. I have been a member of the board for the last fifteen years; Ed Urton was the other director. I know the defendant; he is the large, fleshy man. The first time I ever saw him I was at my farm; he was with George Hubell at that time; that was about the 26th day of February, 1901; this was the same day of the transaction he is charged with here. lie said his business was to introduce some books, library books for the various school districts. Mr. Banta stopped there a short time after they came. Mr. Urton was at home, so far as I know. Well, his business was, he said, to introduce a set of •library books for the various school districts, and he said he would like to show me the books, that he had what he called a. prospectus, or sample, whatever you may call it. He said he had been sent out by the educational department of Missouri, to introduce these books. Well, the books he had with him we examined. The books, he said, Mr. Carrington, the State Superintendent, had recommended these books to the various districts. The price of the books was thirty-seven dollars and a half. Well, he said the books was put out by the Missouri Supplementary Book Company, and Mr. Carrington approved of these books, and urged each and every school district should buy these books. He also said it was a finable offense if the district did not buy these books.
“Q. Tell, the jury, if you can, whose signatures, are attached to this instrument? A. Chas. Banta and myself. ’ ’
Plaintiff introduced the following school warrant, marked “Exhibit A:”
‘‘incidental fund.
“$37.50. No.----
“Treasurer of Marion township, Grundy county, Missouri:
“Pay to W. B. Lawrence, Jan. 1, 1902, or order, the sum of thirty-seven and 50-100 dollars, for 50 Yol. Supplementary Books furnished District No. 8, Township 61 and 62, Range 23, out any funds in your hands for the payment of incidental expenses, belonging to-said district. ' ■ -
“Done by order of the Board, this 26th day of Jan. 1901. C. E. Banta, Clerk. -,
“C. D. Axtell, President.
“Trenton Nat. Bank, Trenton, Mo.,.No. 2988. .
"[Endorsed on back as follows:]
"W. B. Lawrence; Trenton Nat’l Bank, Trenton, Mo. Paid Feb. 10,1902.”
“Q. Mr. Axtell, tell the jury what you and Mr. Banta did there in reference to purchasing these supplementary library books, if anything? A. Well, he proposed to sell those books, and we looked over them, and we thought they were a good set of books, and he wanted us to buy them, and we told him we could not buy them as there was only two of us together, and he said that would make no difference, that there was a quorum. I then told him that I wouldn’t do that. He said he would go over and see Mr. Urton. I was pretty busy at this time. He was a member of the board. He went over and saw him, and brought a written state
“Well, we bought the books of him, gave him a warrant for $37.50 for these books. The district never received any books, never got anything in return.”
Witness here identified warrant marked “Exhibit. A. ” It was obtained in Grundy county, Missouri, 1901.
“Q. Tell the jury on what you relied? A. We relied on Mr. Lawrence’s statements. I signed it because I was president of the board; signed it for the payment of the books, and by the recommendations that he made in regard to the books. The district never received the books. No, sir; we never received them. I saw E. C. Banta sign the warrant; I delivered the warrant to him.
“Q. Upon what did you rely, Mr. Axtell, when you delivered this warrant? A. We relied upon the facts; we would get the books; we took him to be an honest man. I think this is the paper which is marked - ‘ Exhibit B. ’ Mr. Banta, my daughter, and Mr. Banta’s daughter was present, and probably some of the rest of the family were there'; there was only two members of the board. I handed Mr. Lawrence the warrant; we had no money belonging to the incidental fund when we signed this warrant. At the time he gave us this paper he' told us that he was the agent of the company. We expected Mr. Lawrence to ship the books; we had nothing to do with the book company; he said he was their agent; he said he was the authorized agent for the book company to sell and collect for them.”
Defendant here offers in evidence the following contract, marked “Exhibit B.” Same admitted in evidence as follows:
“Received of District No. 8, Townships 61 and 62, Range 23, this 26th day of Jan. 1901, one school warrant for the snm of thirty-seven and fifty-one-hundredths dollars, payable to J. C. Tracy, manager, in payment for one set of fifty volumes of supplementary reading and reference books, to be delivered by the Missouri Supplementary Book Company on or before the 20th day of February, 1901, at the freight depot at Dunlap, Missouri.
‘ ‘ [In fine print:] The Company shall not be bound by any verbal contracts made by traveling salesmen or agents.” “J. C. Tracey,
“Manager the Missouri Supplementary Co.,
“Countersigned by W. B. Lawrence, agent.
[Signed] “C. E. Banta.”
Written across the face of the above receipt in ink is the word, ‘ ‘ Sent. ’ ’ Written in lower lefthand corner of receipt, “No dictionary,” in pencil. Written on back of receipt, “Written to about shipment May 26, 1901.”
C. E. Banta, testified as follows, on the part of the State:
“I live in district No. 8, township 61 and 62, range 23. I am clerk of the board. I met Lawrence first at Dunlap, Missouri. Mr. Lawrence said that he was introducing a school library, and which he understood we wanted to place in our school, and he had something there he was introducing, which had been selected by State Superintendent Carrington, and also indorsed by the State Board of Education of the State of Missouri, and that they and this State Board had made arrangements with the Supplemental Book Company of the State of Missouri, or the Missouri Supplemental Book Company,. or something of that nature, I believe, .to introduce the libraries in the various school
“Defendant objects to the foregoing testimony of O. E. Banta, for the reason that it shows that the testimony tends to show that the goods were to be delivered in the future; that it is not a crime to sell goods and not deliver them, or agree to deliver and not deliver; and for the reason that the warrant issued defendant did not bind the district, and created no legal liability; that it was void on its face, it being payable one year after date, and could deceive no one, and for the further reason that the board of directors, acting separate and apart from one another, can not bind the district. Objection overruled, to which action of the court the defendant then and there excepted at the time.”
“Mr. Lawrence gave us a receipt, which is marked ' ‘Exhibit B.’ We bought the books in good faith, and I suppose if they had come as represented, I would have been willing to receive them without any complaint because they were a good line of books that he showed us. They were a good line of books, and I don’t see any reason why we would not have received them if they had have come according to contract.”
Ed Urton, on behalf of plaintiff, testifies as follows :
“I was one of the board of directors of School District No. 8, on January 26, 1901. The defendant came to my store on the 26th day of January, 1901, and was
“Q. This conversation was between you and Mr. Lawrence? A. Yes, sir.
“Q. Mr. Banta and Axtell were not present? A. No, sir.
“ Q. You never was present, personally, with them nor had any notice of a meeting of the school board at that time, did you? A. No, sir, there was no meeting, as far as I know.”
Mrs< Dot Axtell, testified on part of the plaintiff, as follows:
“He said that he was representing the Missouri Supplementary Book Company, that he was working to sell these books to the various school districts, and that they had been recommended by W. T. Carrington, the State Superintendent of Public Schools of Missouri,
Miss Eva Banta, testified as follows:
“I was at my father’s house about January 26, 1901, when the defendant came there. He said he was the authorized agent of the Supplemental Book Company to sell those books which had been approved by "W. T. Carrington, State Superintendent. He said he was selling these books for the Supplementary Book Company, and was their agent. He named some of the books, some of .them were Plutarch’s Lives, Life of Washington, Poems of Bryant, and some histories.”
Geo. I). Hubell testified.
“I introduced Mr. Lawrence to Mr. Urton. Said I am here in the interest of the State Board of Education and the Missouri Supplementary School Book Supply Company, Reading and Reference School Book Company. He said, that is as best as I can remember, that it had always been the desire of W. T. Carrington and the State Board of Education to furnish the several school districts of the State with proper reference reading books; he said Mr. Carrington and the State Board of Education had got together and had the proper books; that Mr. Carrington had selected this fifty volumes of books as the necessary books; that Mr. Carrington had selected this number of books because he thought the. number of books and the price at which they were now quoted, would be in the reach of the several districts of the State. He said he was the authorized agent of the Missouri Supplemental Book Company, and the State Board of Education, of which W. T. Carrington was a member, to place these books and sell them in the several counties of the State. Mr. Urton said he was only one of the directors, and the books suited him, and to go and see the other directors. Mr. Lawrence and myself got in the buggy and went down
Mr. Axtell, the president of the board, further testified as follows:
‘ ‘ Q. Upon what did you rely, Mr. Axtell, in delivering this warrant to the defendant? A. I relied upon Ms good faith that tve ivould get the books. 'Well, it was for payment of the books. We relied upon the fact that we thought we would get the books. We took him to be an honest man, and that we would get them. ”
Mr. Banta, another member of the board of directors, testified as follows:
“Q. Now if these books had come according to this contract here, you would have received them all right, would you, Mr. Banta? A. Why, if they had come in good shape, why I suppose that is all we could have done.
if they had been shipped to you, you would have accepted them? A. Why I suppose so.
‘ ‘ Q. And the reason why this prosecution has been instituted is because he did not ship you the books ? A. Why, we bought the books in good faith, and I suppose if they had come as represented, we would have been willing to receive them without any complaint, because they was a good line of books that he showed us.
“Q. If the Missouri Supplementary Book Company had shipped these books that you purchased, why you would have made no objections or complaint about it ? A. Yes, sir. They was a good line of books, and I don’t see any reason why we would not have taken them if they had come according to agreement.
“Q. And there would have been no complaint whatever — nothing said about it? A. Well, I could not say whether they would not have been. ■
“Q. So far as you know? A. Yes, so far as I know.”
Mr. Urton, also gave further testimony as follows: '■ ■ “Q. Now, if the books had been shipped that you purchased, why that would have been the end of it, so fár as you are concerned, wouldn’t it, Mr. Urton? A. ■Yes, sir.
‘Q. Now, Mr. Lawrence told you Mr. Urton — that is your name I believe — Urton? A. Yes, sir.;.
"Q. That the- Missouri Supplementary Book Company would ship the books, that he was their agent. That is what he told you? A. I don’t remember that he told me that he would ship the books. I don’t remember who he said would ship the books,
“Q. He said that he was the agent for that company? A. He said that by reason of the contract with this company that he was able to place the books with the rural districts of this State.
<■ ■ “Q. By reason of a contract with the Missouri Supplementary Book Company? A. Yes, sir.”
“Q. Well, go ahead and tell what this defendant told you there about these books, if there was anything more, Mr. Axtell? A. Well, he said that these books was put out by the Missouri Supplementary Book Company and Mr. Carrington approved of these books, and urged that each and every school district should buy these books.
“Q. Now, by this paper which was executed you knew that Lawrence was not to ship the books? A. Well, he represented himself to be the agent.
“Q. Yes, and you relied upon this book company here? A. We relied on Mr. Lawrence.
“Q. Didn’t rely on this paper? A. Well, at the time he give us this paper he told us he was the duly authorized agent.
“Q. You expected this book company would ship the books ? A. We expected that Mr. Lawrence would ship them.
“Q. Well, this does not state that he agreed to ship them, does it? A. He said that he was their agent.
“Q. You looked to the book company to ship the books didn’t you? A. I looked to Mr. Lawrence to ship them books.
“Q. And didn’t look to the book company? A. We didn’t have anything to do with the book company. He said he was their agent.
“Q. Agent of the book company? A. Yes, sir.
“Q. Now as the agent — he, purported to be the agent of this company, didn’t he? A. Yes, sir.
“Q. Now you didn’t understand that Lawrence had any books? A. We understood that he was the agent.
“Q. For this book company? Isn’t that the fact, Mr, Axtell? A. I say that he said that hé was their
‘ ‘ Q. Authorized agent to sell and collect for them. A. Yes, sir.”
Mr, Urton, janother of the school directors, testified as follows:
‘ ‘ Q. "Well, just the best of your impression, knowledge and belief? A. He said by reason of a contract with the Missouri Supplementary Book Company he had, he could place these books in the rural districts at a very low price, etc.
“Q. He told you — etc.—that the Missouri Supplementary Book Company would ship the books? That he was their agent? That is what he told you? A. Now, I don’t remember that he told me that they would •ship the books. I don’t remember that he said he would ship the books.
‘ ‘Q. He said that he was agent for that company? A. He said that by reason of a contract with that, company, he was able to place the books in the rural districts of the State.
“Q. By reason of a contract with the Missouri Supplementary Book Company? A. Yes, sir.
‘ ‘ Q. Then you knew that the Missouri Supplementary Book Company was the company that was to ship the books? A. Why, I presume so.”
At the close of the evidence the court instructed the jury upon all four counts; the instructions applicable to the first count, upon which the defendant was convicted, were as follows:
“The first count charges the defendant with attempting by false, fraudulent representations, statements and pretenses to obtain a school warrant for thirty-seven dollars and fifty cents from C. D. Axtell, C. E. Banta and Ed. Hrton, constituting the board of directors of School District Number 8, Townships 61 and 62, Range 23, in Marion township, Grundy county, Mis
“8. You are instructed that in this cause there are foy your consideration four counts of the information, which was filed on the 10th day of November, 1902. The defendant has pleaded not guilty to the allegations of the information and it becomes your duty to determine as to his guilt or innocence under the first four counts of the information. While the information contains four counts you aie instructed that if you find the defendant guilty, you should indicate upon which count you find him guilty. And in this connection, and in connection with the other instructions given you, you are instructed that the defendant in each count of the information is charged with having made the following false and fraudulent representations, statements and pretenses, with the felonious intent to cheat and defraud, to-wit:
“That the said W. B. Lawrence was then and there the duly authorized agent of the educational department of the State of Missouri to introduce, sell and deliver and receive payment therefor, a certain set of books, known and designated as ‘ Supplementary Reading and Reference Books, ’ -and fifty volumes in number, to the various school districts of the State of Missouri; that he was so sent out by the educational department of the State of Missouri for the purpose of introducing and placing a set of said books in each of the school districts of the State of Missouri. That the said fifty volumes of books, which he, the said W. B. Lawrence, was selling, introducing aforesaid, had been selected by W. T. Carrington, State Superintendent of Public Schools for the State of Missouri, and approved by the State Board of Education of the State of Missouri. That the said W. T. Carrington, State Superintendent of Public Schools for the State of Missouri,- had requested and urged the school districts all over the State of Missouri to buy the books. That the State Board of Education had made a contract with the Missouri Supplementary
“9. You are instructed that if you believe and find from the evidence in this ease, beyond a reasonable doubt, that at any time within three years next before the 10th day of November, 1902, the date of the filing of the information in this ease, the defendant, W. B. Lawrence, at the county of Grundy, in the State of Missouri, intended to cheat and defraud by means of false and fraudulent representations, statements and pretenses, feloniously and designedly attempted to obtain a school warrant for thirty dollars or more of the property of said district hereinafter named of C. D. Axtell, C. E. Banta and Ed Urton, and that they constituted the board of school directors of the School District Number 8, Townships 61 and 62, Range 23, in Marion township, Grundy county, Missouri, then you will find the defendant guilty, as charged in the first count of the information, and assess his punishment at imprisonment in the State penitentiary for a term of not less than two years and not more than seven.
“10. You are instructed that if you believe and find from the evidence that the defendant by the means set out in the information in this case, attempted to get and procure witnesses Axtell, Banta and Urton, School' directors of School District Number 8, Townships 61
Upon this cause being submitted to the jury, they returned a verdict of guilty upon the first count in the information, and assessed defendant’s punishment at two years in the penitentiary. After unsuccessful motions for new trial and in arrest of judgment, he prosecutes his appeal to this court.
It will be observed that the defendant in this cause was convicted upon the first count of the information, which charged him with an attempt to procure a school warrant or order, by false representations to the directors of the school district, with intent to cheat and defraud.
The acts with which defendant is charged, as constituting a criminal offense, relate to a sale of certain books to a school district. Hence, it is well, at the very inception of this investigation, to ascertain the relationship of the directors to the district, and their powers in respect to the transaction of the business concerning the same.
The lawmaking power of this State has made every school district organized in pursuance of the provisions respecting their organization, a body corporate. Thus it was provided in section 9739, Revised Statutes 1899:
Directors of these corporations are selected in pursuance of the provisions of law, which designate the number, the time and manner of their selection. The directors are chosen to transact the business of the school district. In other words, they are the officers of the corporation with authority to exercise the powers usually exercised by corporations.
Section 9761, Eevised 'Statutes 1899, provides as follows for the organization of the board and the transaction of business:
“The directors shall meet within four days after the annual meeting, at some place within the district, and organize by electing one of their number president; and the board shall, on or before the fifteenth day of July, select a clerk, who shall enter upon his duties on the fifteenth day of July, but no compensation shall be allowed such clerk until all reports required by law and by the board have been duly made and filed. A majority of the board shall constitute a'quorum for the transaction of business: Provided, each member shall have due notice of the time, place and purpose of such meeting ; and in ease of the absence of the clerk, one of the directors may act temporarily in his place. The clerk shall keep a correct record of the proceedings of all meetings of the board.”
It will thus be seen that the officials of the school district — a body corporate — must conduct the business of the district in an official way, as indicated by the statute.
The Kansas City Court of Appeals in Kane & Co. v. School District of Calhoun, 48 Mo. App. l. c. 414, in treating of the legal methods of conducting the business of these school corporations, said:
“We are of the opinion that the only proper evidence of the acts of the corporation was the record required to be, and which was kept by the board. It seems that the secretary did keep a record of such proceedings, as the.statute imperatively demanded; but nowhere was there found any authority from the board for the contract here alleged and relied on. The rule seems to be that if the statute creating the corporation and providing for its proceedings shall require such proceedings to be preserved in a record kept for that purpose, then such record is the only proper evidence of such proceedings.”
This court, in Johnson v. School District, 67 Mo. 319, in speaking on this subject, under the statute substantially the same as the present one, said:
“It is clear that the members of the board in transacting the business for the district were to do so in meetings of the board. In purchasing maps and globes, they could only act when assembled together in a meeting of the board of directors, and neither two nor all of the directors acting separately and apart from each other, could bind the district by any contract they might make. The directors were not authorized to draw orders on the township clerk or treasurer to pay for globes or maps, or any other expenses incurred for
In that same case, what was announced by the Supreme Court of' Iowa, upon this subject, in Taylor v. District, 25 Iowa 450, was approvingly quoted. It was said by that court:
“The township district is a body corporate; certain powers! are reserved by or conferred upon the electors ; others are given by law to the district board, and others again to subdirectors. The electors composing the corporate body act by and through specific agencies and in the mode prescribed by law. They can not, as individuals, when not convened at the times and places contemplated by law, vote to raise a tax, authorize the making of a contract, delegate their powers, nor exercise any of the powers conferred upon them as electors by law. The law contemplates action by them in their aggregate capacity, when duly and properly assembled, and not the action of each elector by himself, on the streets, at his store or shop, in the church or schoolhouse. ”
From the testimony disclosed by the record in this case, it is not pretended that the directors of the district alleged in the information, upon which this prosecution is based, acted as a board or as a body, or that there was any pretense of keeping a record of their proceedings.
To maintain this conviction, it must be conceded that the warrant or order secured was not a legal obligation against the district, for this conviction is for an attempt to procure a legal school warrant, and if the warrant secured was a legal one, then there could!' be no such thing as an attempt to secure it.
Our attention is first attracted to the views of the trial court upon the law as applicable to the count in the
If that instruction is to be interpreted according to the terms used, then it is clearly erroneous. It says, substantially, if the defendant made the representations with intent to cheat and defraud, and the “only thing which prevented the warrant from being a legal obligation was the failure or lack of authority of the directors to issue a legal warrant over which the defendant had no control, you mil find him guilty. If the directors had no authority to issue a legal warrant, then there could not possibly be any offense for obtaining one from them; hence, there could be no attempt to obtain a legal warrant, when no power or authority existed to issue it. It may be that the learned trial judge applied these terms to the time and circumstances when the illegal warrant- was issued. If so, he was correct in the use of the terms as applicable to that transaction. Still, this would leave the jury groping in the dark as to the proper course to be pursued by the directors in order to issue a legal school warrant, ánd in no way directs them in the application of the alleged false statements, to the directors, at a time and under circumstances that they were authorized to issue a legal warrant. This instruction did not properly declare the law,
The record further discloses that the defendant challenged by demurrer, duly filed, the correctness of the count in the information upon which the defendant was convicted.
The reasons assigned in the demurrer are: first, that it charged no offense against the defendant; second, that it attempted to charge several independent and contradictory charges in the same information.
The allegations in the first count of the information as to the false and fraudulent representations are as follows:
“1. That the said W. B. Lawrence was then and there the duly authorized agent of the educational department of the State of Missouri to introduce, sell, deliver and receive payment therefor, a certain set of books known and designated as Supplementary Reading and Reference Books, and being fifty volumes in number, to the various school districts of the State of Missouri, and that he was sent out by the educational department of the State of Missouri for the purpose of introducing and placing a set of said books in each of the school districts of the State of Missouri.
“2. That the fifty volumes of books that he was selling and introducing as aforesaid, had been selected by W. T. Carrington, State Superintendent of Public Schools for the State of Missouri, and approved by the State Board of Education for the State of Missouri.
“3. That the said W. T. Carrington, State Superintendent of Public Schools for the State of Missouri, had recommended and urged the school districts all over the State of Missouri to buy said books.
“4. That the State Board of Education_had made a contract, with the Missouri Supplementary Book Company to furnish the various- school districts of the State of Missouri said fifty volumes of .books at very low prices for the purpose of introducing them in said
“5. That W. T. Carrington, State Superintendent of Public Schools for the State of Missouri, had made ■ a contract with him, the said W. B. Lawrence, to introduce these books in the various school districts of the State of Missouri, and to sell said books to said school districts and to receive and collect the purchase price therefor.
“6. That the laws of the State of Missouri compelled each and every school board in the State of Missouri to purchase said books.”
No one can, read the allegations as herein quoted, all contained in one count, and escape the conclusion that they are repugnant and inconsistent with each other. First, it is alleged that defendant was the agent of the State Board of Education; secondly, that the State Board of Education approved the books; third, that the State Board of Education had made a contract with the book company to supply the books; fourth, that W. T. Carrington, State Superintendent of Public Schools, had made a contract with defendant to introduce these books in the various school districts, and to sell said books to the districts and to receive and collect the purchase price therefor.
It is difficult to understand how defendant could have a contract with the State Board of Education, consisting of a body of men, to sell, deliver and receive pay for the books, and also a contract with the Superintendent of Public Schools to do the same thing. It is glaringly inconsistent to say that he was the agent of the State Board of Education, and at the same time, the agent of W. T. Carrington, in the performance of the same service. To emphasize this inconsistency and absurdity of the alleged false statements, it is averred that “the laws of the State of Missouri compelled each and every school board in the State'to purchase these
The law prohibited the State Superintendent of Public Schools from making the contract with defendant that it is alleged he represented was made. [Sec. 8959, R. S. 1899.] The directors were presumed.to know this was the law.
If the representations were made by the defendant, as charged in the first count of the information, the fact of making such representations furnishes the reason why they were not calculated to deceive a reasonably prudent man. Not only are they inconsistent, but extremely absurd. If the directors did not want to purchase the books, we are unwilling to reflect upon their intelligence by concluding that the representations, as recited, induced them to make the purchase.
The demurrer to the first count in this information should have been sustained, for the reason that the allegations, as to false representations, were repugnant and inconsistent, and if made as stated, were not calculated to deceive and thereby accomplish the purpose sought.
The instructions given in this cause were erroneous. Instruction numbered 8 recites all the representations heretofore referred to, and that is followed by instructions numbered 9 and 10, which told the jury that if they believed from the evidence that the defendant made the representations, as recited and set out in the information, they will find the defendant guilty as charged in the first count of the information. These declarations
“4. The court instructs you that the defendant had the lawful right to sell and solicit for sale all books named and recommended in the pamphlet read in evidence, published by or under the authority of W. T. Carrington, Superintendent of Schools in the State of Missouri and president of the Missouri State Board of Education, and that he had the legal right to state and represent that said books had been so recommended and indorsed by the State Superintendent of Public Schools, and by the educational department of the State of Missouri, and to do so was no crime under the law, and for the doing of which alone you can not convict him in this case.
“5. The court instructs you that no representations or statements made by the defendant with reference to what the law was or is, or what were the legal duties of the school board or school district or board of directors thereof, if you find he made any, will constitute any offense, and you can not convict him in this case for making them or for obtaining or receiving anything or attempting to do so, solely on account thereof. ’ ’
The very representations that the court declares in those instructions could not constitute the basis of a criminal offense, were made a part of the foundation in instructions numbered 7, 8, 9 and 10, upon which the jury were authorized to convict the defendant as charged in the first count of the information. The burden should not have been cast upon the jury to determine which declarations were to be followed.
Numerous other errors are apparent in the instructions, as applicable to other counts in the information. We will not discuss them, as they have no application to the count upon which the defendant was convicted. We have read, with great care, the entire evidence in
The directors, or some of them, testify that they were satisfied with the line of books, and had they been delivered no complaint would have been made. They further say, “We were relying upon the fact that the books would be delivered. ’ ’
There is an entire absence of any testimony that they did not want the books, or that if the representations had not been made, they would not have purchased them. The old common expression that “there are two bad paymasters, one who never pays and one who pays in advance,” is very appropriate to this case. That was the whole trouble in this transaction, the effort to pay for these books in advance. Can any intelligent man
The testimony simply shows that the directors of this school district permitted the defendant to persuade them to make a contract for certain books. The fact that he stated that the Board of Education or Mr. Carrington approved the books or that he was representing them in selling them, furnished no reason why they had to buy them. Aside from that, the contract for the delivery of the books indicates in unmistakable terms that he was not representing the Board of Education or Mr. Carrington, but was acting for a book company. It may be urged that, the conviction being simply for an attempt to commit an offense, only such testimony as applies to that offense will be considered. “We will say as to that proposition, if we are to consider only the representations as made, the defendant having been convicted of only an attempt to commit an offense, being a concession that the directors did not act upon the statements of the defendant, it but adds additional force to the views of this court, that the statements were not calculated to deceive, for the reason that the directors were not deceived by them. On the other hand, in passing upon the question of an attempt to commit an offense, if we are to consider the testimony upon the entire transaction, not only that which is applicable to the attempt, but as well that applicable to the completed acts of
This conviction can not be sanctioned because the defendant obtained the money for books which he promised to deliver, or for failure to deliver them. That is not the charge upon which this prosecution is based.
There is an absence of any testimony indicating that the defendant attempted to get the directors to meet officially, and order the warrant drawn; but the reverse appears. He did just what he attempted to do. He discussed the sale of the books with the directors individually, filled out the warrant himself, executed the receipt or contracted for it, obtained the money from the bank on the warrant as drawn. He accomplished, doubtless, what he intended; that was to obtain the money for the promise of the delivery of the books. To constitute an attempt to commit an offense, the person making the attempt must have in mind the offense itself. The defendant, in this cause, filled out the warrant; the presumption is that he intended the result of his act, and it seems in this case that the illegal warrant answered the same purpose as one in due form.
It is apparent that this transaction was just simply an ill-considered matter. The directors expected to
‘ ‘ It is not the policy of the law to punish as a crime the making of every foolish or ill-considered agreement. If it is, the jails and prisons must be greatly enlarged. ‘Where the pretense is absurd, or irrational, or such as the party injured had, at the very time, the means of detecting at hand, it is not within the act.’ ” To the same effect is the case of State v. Barbee, 136 Mo. l. c. 445. It was said in that case by Sherwood, J.:
“It is well settled law, both in this State and elsewhere, that it is not every false pretense which can be made the basis of a criminal prosecution. It must be such an one as is calculated to deceive. ’ ’
We have given every phase of this case our most careful attention, and while the conduct of the defendant does not meet with our approval, still we are unable to reach any other conclusion than that this judgment is unsupported by the facts surrounding this transaction.
The judgment will be reversed, and the defendant discharged.
