Defendant and William H. Fallis were jointly indicted in the criminal court of the city of St. Louis at its July term, 1881, and charged with obtaining goods in the city of St. Louis under false pretenses. At the May term, 1882, of said court, a trial was had resulting in the conviction of the defendants. Fallis obtained a new trial, and Lichliter, after making,
It appears from the record that, on the fifth of December, 1881, defendants were arraigned, pleaded not guilty, and were put upon trial, which resulting in a mistrial, the cause was continued and specially set for trial on the twentieth of February, 1882, at which time defendants appeared and filed a motion for a special venire of citizens from the county, and the same day asked leave to withdraw the plea of not guilty, and to file a motion to quash ; the court refused to allow this for the reason that said application was made too late. This action of the court was excepted to at the time and is assigned for. error here. It is said in case of State v. Rector,
It is also insisted that the judgment should be reversed on the ground that the evidence shows that the offence, if committed at all, was committed in Jasper county. The record is very voluminous, and as no objection has been interposed to the abstract of the evidence furnished by respondent, we shall adopt it as being correct ; and so much of it as is material to the question is as follows : In the fall of 1880, the traveling salesman of the firm of Samuel Cupples & Company, of St. Louis, met defendants in the town of Joplin, Jasper county. He was informed by them that they were about to form a business partnership in Joplin, and desired to purchase a carload of wooden and willowware from said Cupples & Company on a credit of sixty days. The salesman told them that in order to obtain credit it would be necessary for them to furnish his firm with a statement of their financial condition. Such a statement, setting forth their assets and liabilities, was made in writing in the name of Fallis & Lichliter, which was signed by E. A. Fallis and mailed from Joplin, and received by Cupples & Company in the city of St. Louis. A written order for the goods specified in the indictment was also received from Fallis & Lichliter. Cupples & Company, being satisfied with said statement, which represented the assets of the firm to be largely in excess of their liabilities, and relying upon its truth, filled the order, and delivered the goods to the St. Louis & San Francisco Railway Company, at their depot in the city of St. Louis, on the twenty-seventh of October, 1880, addressed and consigned to Fallis & Lichliter at Joplin, the said railway company agreeing, by a bill of lading acknowledging the receipt of the goods from said Guppies & Company, to deliver the same to Fallis & Lichliter at Joplin, which was done a few days thereafter.
Martin Fallís, a brother of one of the defendants, among other things, testified that just prior to the purchase of the goods from Cupples & Company, defendant Fallís requested witness to make a written statement of the financial condition of the firm to be sent to St. Louis ; that he made a true statement of their assets and liabilities and submitted it to defendants, who told him that they must make a better showing or quit the business, as such a statement- would not buy goods ; that, under directions of defendants, and from figures furnished by them, and upon their assurance that no harm should come to him from the act, he made the statement for Cupples & Company and signed the firm name and also the name of E. O. Fallís, his wife, thereto, by their direction and in their presence ; that this statement was wholly false, known to be so by defendants, was intended to deceive, and made-for the purpose of obtaining goods and credit from Cupples & Company, and that he sealed it up and mailed it to Cupples & Company at St. Louis; that the goods ordered in connection with the statement were received at Joplin from the railway company and went into the general stock of the firm of Fallís & Lichliter. The evidence tends further to show that, after the receipt of these goods and for a period of about six weeks before the assignment, large quantities of goods were taken from the store, and deposited at other places in other sections of the state and in Kansas, and that considerable sums of money collected by defendants were retained by them so that but little was left for creditors when the assignment was made. The falsity of the
It is contended by counsel that, under the facts disclosed by the evidence, the criminal court of the city of St. Louis had no jurisdiction of the case, but that defendants should have been indicted and prosecuted in Jasper county, and in support of this contention has cited the case of State v. Schaeffer,
The objection made to the reception of expert testimony as to what the books of the firm of Eallis & Lichliter 'showed the financial condition of the • firm to be will not be considered here, for the reason that the record does not show that any exception was saved to the action of the court in overruling it.
The following instruction was not given as asked, but was modified by the court and then given, and this action is also complained of as error:
“The court instructs the jury, that although they may believe from the evidence that the defendants, or either, did make false entries in the account books, or issue fraudulent notes, or that they did dispose of, appropriate, conceal, or make way with, by themselves or others, of assets or moneys of the firm of Fallís & Lichliter, still unless the jury further believe from the evidence, beyond a reasonable doubt, that the defendants did make, and were present counseling, aiding, and abetting the making of the statement to Samuel Cupples & Company, introduced in evidence, and thereby did procure the property mentioned in the indictment, with intent to defraud Samuel Cupples & Company out of the purchase price thereof, the j nry will return a verdict oí not guilty.”
“But by the terms ‘ were present, counseling, aiding, and abetting the making of the statement,’ is not meant that they were all actually present at' the very time when said statement was reduced to writing, but that the statement was the result of a common understanding and fraudulent conspiracy on the part of said Mart P. Fallis and the defendants primarily or at the-time 'entered into by them. In other words the making of said statements created something more than the mere writing of it. And, hence, if they advised, counseled, or abetted Mart P. Fallis, or invited him to make it before he actually reduced it to writing, and also so-plausibly, designedly with an intent to cheat and defraud Cupples & Company, and with knowledge that it was false, they made it as much as he, in contemplation of law.” The addition to or modification of the instruction is simply explanatary of the terms “present, counseling, aiding, and abetting,” which are used in the instruction, and does not in any manner change the-principle announced in the instruction as asked. While the modification may be subject to verbal criticism, its meaning is plain enough, and we cannot see how it was calculated to mislead the jury. The instructions given by the court of its own motion, in connection with those given for defendants, all asked by them being given, the-last one of which was given with the modification above noted, presented the whole case fairly to the jury.
The affidavits accompanying the motion for a new trial fail to disclose any diligence whatever on the part of defendants to discover the evidence which it is proposed to offer in the event of a new trial being granted. They do not allege that the evidence first came to their knowledge after the trial, nor do they aver that before the trial, they had ho knowledge of it.
.Finding no error in the record the judgment is affirmed.