148 S.W.2d 1024 | Mo. | 1941
Lead Opinion
Clark Nienaber was charged with obtaining property under false pretenses (Sec. 4487, R.S. 1939, Mo. Stat. Ann., sec. 4095, p. 2894) in the Circuit Court of Boone County, Missouri. A change of venue was granted to Monroe County. Upon trial, defendant was found guilty and sentenced to two years' imprisonment. He appeals.
[1] Defendant attacks the information. He says an allegation that made false and fraudulent representations "designedly and with the false and fraudulent intent" et cetera should have read: "designedly and with the felonious intent" to charge a felonious intent. We are inclined to view the questioned portion as surplusage. We think we may dispose of the issue without setting out the information, which is lengthy and involved. Section 4487, in so far as material, reads: "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 from any person any money, personal property, right in action or other valuable thing or effects whatsoever . . . shall upon conviction thereof be punished . . . as for feloniously stealing . . ." This statute prohibits specified acts done with an intent "to cheat or defraud," and does not denominate the intent necessary for the commission of the offense as a "felonious" intent, although the prohibited offense — the act plus the intent — constitutes a felony. The information charged an intent to cheat and defraud, and it was not necessary to also characterize the intent as "felonious" [Consult State *618
v. Blockberger,
[2] Defendant, on the theory there was no sufficient proof that he, on April 22, 1938, did not own and possess the livestock he represented he owned and possessed, contends there was no case made.
Defendant resided in Boone County, Missouri, and was a feeder of livestock. He banked with the Columbia Savings Bank, Columbia, Missouri, for a number of years. On April 22, 1938, he asked Mr. Banks, an assistant cashier, for a loan of $500 and stated he desired to renew and consolidate his outstanding indebtedness to the bank, consisting of four notes aggregating $2,440. On the faith of defendant's representations of his ownership and possession on his farm of 259 hogs, 6 mules and I saddle colt, the bank agreed to an indebtedness aggregating $2,750. Defendant thereupon executed and delivered to the bank two notes, dated April 22, 1938, one, payable in six months, for $1,500 and the other, payable in ninety days, for $1,250, securing the same by a chattel mortgage on the livestock aforesaid, and the bank delivered to defendant the notes evidencing and the mortgages securing his prior indebtedness, and gave him credit for $310 on his checking account. The bank, shortly before July 22, 1938, notified *619 defendant of the maturity of the $1,250 note. Defendant came in, stated he would like to hold the hogs thirty days for a better market and the extension was granted. Again, in response to the bank's notification, defendant asked an additional extension for like purposes and the bank agreed to an additional two weeks, with the understanding the hogs were to be then shipped and remittance made. Upon the expiration of the two weeks' period, the bank notified defendant by mail and, receiving no response, wrote defendant several times. On November 10, 1938, Mr. Banks went to defendant's farm, where defendant advised him he had sold "what hogs he had." Mr. Banks insisting, defendant called at the bank that afternoon. The matter was not adjusted. Although the bank thereafter made efforts to locate defendant, he was next seen by Mr. Banks in the Prosecuting Attorney's office the first week of December, 1938. Mr. Banks asked defendant, if he ever owned all the hogs listed in the mortgage. He said: "No, but I did have part of them." Earl Carter testified that he was at defendant's place every third or fourth week in March, April, May and June, 1938, inspecting a loan on cattle for the St. Louis Livestock Company; that he was over defendant's pastures, etc.; that he never saw as many as 150 hogs there, and that, according to his judgment, he saw only 50 to 60 hogs on the farm. Another witness, Frank Bruner, testified that he was working for defendant and, in April, 1938, defendant owned only 3 mules, 1 horse, and (although the following was much shaken on cross-examination) 60 to 70 hogs. Frank Johnson, whose folks had purchased the farm, testified he was repairing and painting buildings on the farm between June 4, and September 14, 1938, and that defendant had only 50 to 75 hogs. A submissible case was made.
[3] An assignment in the motion for new trial alleged error in the admission of testimony with respect to matters occurring after the giving of the chattel mortgage tending to show that defendant had disposed of property subject to the mortgage without designating the witness or witnesses so testifying. Speaking to the sufficiency of assignments questioning the evidence, State v. Ryan (Mo.), 50 S.W.2d 999, 1000[8], states: "It is sufficient if the assignment contains the name of the witness, the substance of the testimony complained of, and the grounds of its admissibility or inadmissibility. This is the better practice." [See also State v. Buckner (Mo.), 80 S.W.2d 167, 169[10]; State v. McKeever,
[4] Defendant, with greater particularity, complains of the admission of witness Johnson's testimony that defendant had only 50 to 75 hogs between June 4 and September 14, 1938, on the ground it related to matters subsequent to the giving of the mortgage. Defendant's two requests, the first in July, 1938, for additional time that the hogs might be marketed to better advantage implied he still owned and possessed the hogs listed in the mortgage of April 22, 1938, and Johnson's testimony considered in connection therewith, tended to establish that the number of hogs possessed by defendant was not 259 as listed in the mortgage or impliedly represented by said requests. It also had some probative value when considered in connection with defendant's uncontradicted admission that he did not have all the hogs listed and the testimony of other witnesses that the defendant had only 50 to 70 hogs. [See 2 Wigmore on Evid. (3 Ed.), sec. 437.]
[5] Defendant says the omission of the word "feloniously" in connection with the intent renders the State's main instruction erroneous. What we said of the information rules the issue. [See State v. Tipton,
[6] Defendant complains of the instruction on the credibility of witnesses because it omitted the "falsus in uno, falsus inomnibus" clause. The instruction informed the jury they were the sole judges of the credibility of the witnesses and the value and weight of their testimony and, authorizing them to take certain factors into consideration *621
along with all the facts and circumstances in evidence, directed the jury to give each witness such credit and his testimony such value and weight as they deemed proper. Defendant does not contend that the instruction misstates the law and the omission of the clause mentioned does not cause the obvious proposition of law therein stated to become error. [Consult Flint v. Loew's St. L.R. A. Co.,
[7] Complaint is made of the words "if established" in the instruction on good character, reading: "The court instructs the jury that the previous good character of the defendant, if established, is a fact . . ." The same attack was made by this defendant against a like instruction in State v. Nienaber,
[8] Defendant complains of statements made in the opening statement by the Prosecuting Attorney and certain evidence bearing on "flight" on the ground defendant fled on account of a different offense and evidence of flight was incompetent in the instant case. Defendant concedes reference to flight for the offense on trial is competent. The evidence established that the Columbia Savings Bank had confidence in defendant and, as in previous instances, made no investigation of the security offered by defendant. Not until November 10, 1938, after defendant failed to attend to the indebtedness, did the bank inquire or investigate and then first obtained information the security was not available. Defendant, at the bank's insistence, called for a conference on the afternoon of November 10th. November 11th was a holiday. Thereafter, the bank's efforts to locate defendant were unsuccessful until the first week of December, 1938, when Mr. Banks talked to defendant in the Prosecuting Attorney's office. Defendant's brief states (see also State v. Nienaber,
Defendant received the minimum sentence. This is likely attributable to his previous good reputation. The factual issue of flight in the instant case affords no ground for asserting prejudice.
The foregoing disposes of all assignments presented for reversal.
The judgment is affirmed. Cooley and Westhues, CC., concur.
Addendum
The foregoing opinion by BOHLING, C., is adopted as the opinion of the court. All the judges concur.