230 Mo. 631 | Mo. | 1910
This is an appeal from a sentence of the circuit court of Stone county. The defendant was indicted at the March term, 1908. Judge John T. Moore, the regular judge of that circuit, disqualified himself, by his order of record, and called in Judge A. W. Lincoln of the criminal court of Greene county. At the November term, 1908, Judge Lincoln, with a jury, tried the cause, and defendant was found guilty of obtaining money under false pretenses, and his punishment assessed at two years in the penitentiary. His motions for new trial and in arrest were heard and overruled, and he was duly sentenced. At the same term the court made an order allowing defendant to file his bill of exceptions by the first day of the next regular term of the said court, which was March 8, 1909. Judge Lincoln’s term of office as judge of the criminal court of Greene county, expired January 1st, 1909, Judge Alfred Page having been elected at the N|ovember election, 1908, and qualified as such. The defendant prepared his bill of exceptions and tendered the same to Judge John T. Moore on the first day of the March term, 1909, and Judge Moore signed the same and ordered it filed.
I. Counsel for defendant have argued the exceptions saved during the trial, but they are met by the contention that there is no valid bill of exceptions; that Judge Moore, the regular judge of the circuit court, having signed the same after having disqualified him
Section 731, Revised Statutes of 1899,. in force when this bill of exceptions was signed by Judge Moore, and now, provided: “In any case where the judge who heard the cause shall go out of office before signing the bill of exceptions, such bill, if agreed to be true by the parties to the action, or their attorneys, or shown to the judge to be correct, shall be signed by the succeeding or acting judge of the court where the ■ case was heard.”
That Judge Moore was not the “succeeding judge” to Judge Lincoln within the meaning of the foregoing section is, we think, too plain for doubt. Judge Page succeeded Judge Lincoln as judge of the criminal court of Greene county, but as he did not sign the bill, it is unnecessary to determine whether he could have lawfully signed the bill in cases where Judge Lincoln had acted in other jurisdictions, when called to act in the place of another judge under our statutes. The question is, did Judge Moore have authority to validate the bill under the clause “acting judge of the court where the case was heard.” He was the regular judge of the Stone circuit court, and was both de facto and de jure “the acting judge of the court where this case was tried,” and therefore he came within the strict letter of the statute and was authorized to sign the bill, unless the contention of the Attorney-General, that he was not authorized to sign the bill by reason of his having disqualified himself on the record on account of being interested and prejudiced is sound. In a word does this disqualification attach itself as a necessary exception to the otherwise plain and unconditional words of the statute and require that it shall be read into the act?
An example of this principle in the interpretation of statutes is found in Bank v. Graham, 147 Mo. 250, in which the right of parties to agree upon a special judge was held to be dependent upon the regular judge being disqualified. Recurring now to the law as it existed prior to the enactment of section 731, Revised Statutes of 1899 (now sec. 2032, R. S. 1909).
It was settled that an incoming or succeeding judge’s only course when called upon to'pass upon a' motion for a new trial, filed before his predecessor, but not disposed of, was to grant such motion. [State ex rel. v. Walls, 113 Mo. l. c. 45; Woolfolk v. Tate, 25 Mo. 597; Cocker v. Cocker, 56 Mo. 180.] The ground upon which that doctrine was based was that a party to a suit has the same right to have his motion for a new trial heard and duly considered as he has to institute or defend an action, and it is better to allow a new trial where the court for any cause cannot consider the merits of an application for that purpose than to refuse it, otherwise irreparable injury may be done, whereas on the other hand the prevailing party in the verdict will only suffer by delay and generally will secure another verdict if entitled to it. The reason for denying the motions in the circuit court was that the incoming judge had not heard the evidence and could not therefore intelligently pass upon the motion. But in the march of time stenography had come into general use, and the Legislature had provided for official stenographers to take all the evidence and exceptions during the trial and to transcribe the same into long hand, and accordingly the incoming judge has as com
II. The defendant insists that the evidence will 'not sustain the verdict and sentence.
The testimony established that the heirs or devisees of one Crocker, a citizen of Massachusetts, owned a considerable quantity of wild and unoccupied timber lands in "Stone county of this State. It appears that in 1906 they were desirous of selling these lands. They made an arrangement with James R. Orr of Webb City, Missouri, to inspect the lands and make report of their value. The defendant resided at Galena, the county seat of Stone. Orr had no acquaintance with the lands or their value and he employed defendant to accompany him on an inspection of the lands, which consumed about three weeks of time. Orr made his report to the Crockers and he testified they wrote him they would pay him a liberal commission to sell the lands. This was in November, 1906. Thereupon Orr wrote defendant, Morris, that if the latter would find purchasers, Orr would give him, defendant, two-thirds of his commission. He stated that the arrangement was that defendant was to find the purchaser and fill out applications furnished him by Orr, and Orr would prepare the deeds and send them to the Crockers to execute.
Defendant acting under this arrangement proceeded to get purchasers from December, 1906, till September, 1907, and deeds were made and the trades consummated. On September 16, 1907, Orr wrote defendant that owing to some adverse claim, the Crockers had withdrawn the lands from the market. The state attempted to show that defendant was not authorized to receive any of the purchase money, and Orr
The indictment in this case charges the fifty dollars was obtained on the representation that defendant was the agent for the Crockers and had authority to sell the southwest quarter of the southeast quarter of section 33, township. 24, range 24, in Stone county, and that H. 0. Morris paid him said money by reason of said false representations.
H. O. Morris testified he had been wanting to buy some of the Crocker lands, and heard defendant was the agent, and he came up and bought forty acres on payments $50 down, and then some time after that he looked over the lands and saw some more forties and he made some payments on same and inquired of defendant if he could get the land, and defendant said, “Yes, sir, you can get the land if you pay the money on it, and the land can'be made raise the rest
She testified that on the 14th of October, 1907, she went to Galena on her way to Oklahoma and paid defendant $50 on the southwest quarter of southeast quarter of section 33, township 24, range 24, in Stone county, for her husband, for the Crockers. She testified to paying defendant the $50 on that date. He represented himself to be the agent of the Crockers to sell this land in August, 1907. That he would send the money and the Crockers would make the deed. These statements were made in August, 1907. She had a slight' memory of hearing that defendant was dealing with the land through another agent in Jasper county. She drew the $50 out of the bank, and paid defendant under the instruction of her husband. Defendant stated that when all the amount of the contract price was paid in on the land, her husband would get his deed. The Crockers were to make the deed. H. C. Morris never tendered the balance of the purchase money. The only representation he made was that he would get them a deed when the money
Henry C. Morris testified that after the agents of the Crockers took possession of the ties he went to Galena and talked to the defendant abont purchasing this particular forty acres, and defendant said it was for sale, and that was about all that he said at that time, and he told the defendant he wanted this forty and would be back again and see about it, and later he told his wife to buy it. He could not fix the date when he had this conversation with defendant about this particular tract.
S. A. Johnson testified for the State that he was present in defendant’s office in Galena after the ties had been branded and claimed by the Crockers when Henry C. Morris had a talk with the defendant, and Henry told the defendant he thought he ought to pay him his money back as he could not get his deed, and the defendant told him he would not have any talk about it because “you fellows are not going to get me to say anything to convict myself. ’ ’ He seemed to think that the witness and Henry Morris were endeavoring to get testimony against him.
C.. B. Swift for the State testified to a conversation he had with the defendant in 1907, and defendant told him he was only acting under another agent at Webb City. He spoke about the parties making ties on this land and that he would like to get more authority so he could stop people from cutting the timber.
The defendant testified in his own behalf and
Charles Racliff testified for the defendant that he knew H. 0. Morris and the defendant, and was present during the conversation when Morris wanted the defendant to pay back some money he had paid him. When he asked for the money defendant told him: “No, our contract was, when you pay the balance of the money and the land came back on the market, I was to fulfill my part of the contract.” In that conversation, H. 0. Morris admitted that he knew when he paid the $50 that the land was off the market, but he said he thought he had the right to cut the ties, but had been stopped, and as he could not go on cutting the ties he ought to have his money back. But the defendant stated, “The agreement was, you pay me this much money on the property and it was off the market, and when it comes back on the market, you are to have the first call, that was our understanding.”
That the defendant’s representations that he was the agent of the Crockers for the sale of this land were true at the time he made them in February, 1907, and up to September 16, 1907, is established by the testimony of the State. Mr. Orr’s testimony on this point leaves no doubt whatever. The negotiations for the purchase of the southwest quarter of the southeast quarter of section 33, township 24, range 24, began in the month of August, 1907, and at that time the defendant was the agent for the sale of this land.
Mrs. Laura Morris’s testimony discloses that the defendant made no representation whatever as to the agency at the time she paid the fifty dollars for her husband. She testified that the only representation he made at the time she paid him the money was that he would get them a deed when the money was all paid in.
While, of course, in the discussion of this matter, the'failure of the State’s evidence alone can properly be considered, it would appear that Henry Morris himself was not entirely without fault. According to his own testimony, that he was not to have this land until he had paid the full purchase price therefor, he had no
After a full consideration of the testimony in this case we have reached the conclusion that the testimony wholly failed to establish the essential elements of the crime with which the defendant was charged.
The judgment must be and is reversed and the defendant discharged.