201 Mo. 702 | Mo. | 1907
On the 27th day of February, 1905, the prosecuting attorney of Jackson county filed an information in the criminal court of said county, at Kansas City, charging the defendant and one James B. Turner and one W. S. Gibbs with obtaining certain household goods and furniture from one S. L. Tolly, by false pretenses.
The information, omitting the formal parts, is as follows:
. “Now comes Isaac B. Kimbrell, prosecuting attorney for the State of Missouri and in and for the body of the county of Jackson and upon his oath informs the court that John W. Roberts, James B. Turner and W. S. Gibbs, and each of them on the — day of July, 1904, at the county of Jackson and State of Missouri con*711 triving, designing and intending to cheat and defraud one S. L. Tolly of his goods, wares and merchandise did apply to and request the said S. L. Tolly to sell and deliver to the said John W. Roberts, James B. Turner and W. S. Gibbs certain furniture and household goods consisting of beds, chairs, tables, dressers, couches, carpets, kitchen utensils, pictures and other goods and chattels being all the personal property then being at a certain rooming house at 1123 Oak street, Kansas City, Jackson county, Missouri, a more complete description of which said property is to the prosecuting attorney unknown for the reason that said property has ever since said day been in the possession of the defendants herein, in exchange for the following described real estate situate and being in the county of Texas and State of Missouri, to-wit, all the southwest quarter of section nine, township twenty-eight, range eleven, containing 160 acres more or less; and to induce said S. L. Tolly to make such trade and exchange as aforesaid and to effect their said scheme and design to cheat and defraud the said S. L. Tolly, they the said John W. Roberts, James B. Turner and W. S. Gibbs and each of them did then and there designedly,-feloniously and falsely pretend and say to the said S. L. Tolly that the said W. S. Gibbs was then and there the owner of said real estate so situate as aforesaid and then and there had good right to sell the same and could pass good title thereto to the said S. L. Tolly or to such person as the said S. L. Tolly would designate by virtue of the following premises, to-wit, that on the 15th day of June, 1904, said real estate was owned by one Lou R. Cornell and G.. W. Cornell, her husband, and that on said 15th day of June, 1904, said Lou R. Cornell and G. W. Cornell had good right to sell the same and pass good title thereto, and that on said 15th day of June, 1904, said Lou R. Cornell and G. W. Cornell by a certain warranty deed fully executed in blank*712 as to the grantee thereto and delivered to him the said W. S. Gibbs conveyed to him, the said W. S. Gibbs, good title to said real estate so situate as aforesaid, and that the said Lou R. Cornell and G. W. Cornell on said 15th day of June, 1904, at the time of the execution and delivery of said deed hereinafter set forth had authorized him the said W. S. Gibbs at any time to fill in as grantee of said land' in the blank space left in said deed for the name of the grantee thereof the name of any person to whom said W. S. Gibbs should desire to sell said land, which said deed is of the purport following, to-wit:
“Warranty Deed.
“This indenture made on the 15th day of June, A. D. one thousand, nine hundred and four by and between Lou R. Cornell of the county of Jackson and State of Missouri, parties of the first part and ................of the county of.........., State of .........., part — of the second part.
“Witnesseth; that said parties of the first part in consideration of the sum of exchange of property and one dollar, to-wit, paid by the said part— of the second part the receipt of which is hereby acknowledged do — by these presents bargain, sell, convey and confirm unto the said part— of the second part — heirs and assigns, the following described lot — , tract— or parcel— of land lying, being and situate in the county of Texas, and State of Missouri, to-wit:
“All the southwest quarter (1-4) of section nine (9) township twenty-eight (28), range eleven (11), containing 160 acres more or less —, to have and to hold the premises aforesaid with all and singular the rights and privileges and appurtenances and immunities thereto belonging or in any wise appertaining unto the said part— of the second part, and unto- — heirs and assigns forever; the grantor— hereby covenanting that the said premises are free and clear from*713 any incumbrances done or suffered by —, and the said grantor will warrant and defend the title to the said premises unto the said part— of the second part and unto — heirs and assigns forever against the lawful claims and demands of all persons claiming under — said grantor— and not otherwise.
“In witness whereof the said parties has hereunto set their hand the day and year above written.
(Signed) “Lou E. Cornell,
“G. W. Cornell.
“And the said W. S. Gibbs could then and there pass good title to said real estate so situate as aforesaid to the said S. L. Tolly or to such person as the said S. L. Tolly should designate by writing the name of said S. L. Tolly or such other person so designated by the said S. L. Tolly in the blank space left in said deed for the name of the grantee thereof and further to induce the said S. L. Tolly to make such sale and exchange as aforesaid and to effect their said scheme and design to cheat and defraud the said S. L. Tolly they the said John W. Roberts, James B. Turner and W. S. Gibbs and each of them did then and there unlawfully, feloniously and designedly exhibit to the said S. L. Tolly a certain false and fraudulent abstract of title to said property so situate as aforesaid of the purport following, to-wit:
“ ‘Abstract of title to the south half (1-2) and the northwest quarter of section nine (91) township twenty-eight (.28) range eleven (11) Texas county, Missouri.
“ ‘United States of America to J. S. Smith.
“ ‘Patent dated June 7, 1858, consideration cash, entry recorded January 5, 1861, in book “P” page 97 with other lands.
“ ‘J. S. Smith and Mary J. Smith, his wife, to T. J. Dickey. Warrantee deed dated January 5, 1861, acknowledged before a Notary Public, consideration $385, recorded March 16, 1861, in book “ II ” page 163, with other lands.-
*714 “ ‘T. J. Dickey and Julia Dickey, Ms wife, to Henry Stubbs. Warrantee deed dated September 25, 1878, consideration $517 acknowledged before a Notary Public, recorded January 2, 1873, in book “6,” page 249, with other lands.
“ ‘Henry Stubbs, single, to J. H. Carter.- Warrantee deed dated August 9, 1887, consideration $1,000, acknowledged before a Notary Public, recorded August 9, 1887, in book “98,” page 315.
(Conveys land in caption.)
“ ‘J. H. Carter and his wife, Máry Carter, to D. J. Daniels. Warrantee deed dated February 15,1893, consideration $1 and exchange of property acknowledged before a Notary Public, recorded August 26,1893.
(Conveys land-in caption.)
“ ‘D. J. Daniels, smgle, to Lou R. Cornell. Warrantee deed dated July 17, 1903, consideration $1 and exchange of property acknowledged before a Notary Public, recorded January 17, 1904, with other lands.
“ ‘The foregoing claim of title numbering from one to six contains all the conveyances that are of record in Texas county, Missouri, that affect the title to the land described in the caption, and I further certify that there are not judgments against any of the parties named herein that are a lien against said land. All taxes are paid that are due.
(Signed) “ ‘ J. H. Jones.
“ ‘June 15, 1904.
“ ‘Houston, Texas county, Missouri.’
“And the said John W. Roberts, James B. Turner and W. S. Gibbs did then and there pretend and say to the said S. L. Tolly that the said abstract above set out was a full, true and correct statement of all conveyances of said land from United States patent to said land to the date of June 15, 1904, that were of*715 record in the county of Texas, State of Missouri, affecting the title to said land so situate as aforesaid and that by virtue of the various conveyances so set out in said abstract Lou R. Cornell and her husband G. W. Cornell were on said 15th day of June, 1904, the owners of said real estate so situate as aforesaid and on said day had good right to sell the same and pass good title thereto and that the said Lou R. Cornell in said abstract named as the grantee in the warrantee deed from the said D. J. Daniels to said Lou R. Cornell and. the said Lou R. Cornell whose name was subscribed to said warrantee deed dated June 15, 1904, hereinbefore set forth were one and the same person and that the fact that the name was spelled Connell in said abstract and' Cornell in said deed hereinbefore set forth was the result of merely a clerical error and in no way affects the title to said land, and the said S’. L. Tolly' believing the said false pretenses and representations so made as aforesaid by the said John W. Roberts, James B. Turner and W. S. Gibbs and each of them to be true and relying upon and being deceived by, such representations and pretenses and said false and fraudulent abstract was induced by said false pretenses and representations and said false and fraudulent abstract, to then and there sell and deliver and did then and there sell and deliver to said John W. Roberts, James B. Turner and W. S. Gibbs said personal property so located at said rooming house» at 1123 Oak street, a complete description of which is hereinbefore set forth of the value of six hundred dollars, of the goods and property of the said S. L. Tolly in exchange for a pretended conveyance by the said ~W. S. Gibbs of said Texas county land so situate as aforesaid to the said S. L. Tolly and Lena Tolly, his wife, which said pretended conveyance of said land was then and there executed by the said John W. Roberts, James B. Turner and W. S. Gibbs and each of them by then and there writing in*716 said deed hereinbefore set forth in the blank space left therein for the name of the grantee thereof, the names of the said S. L. Tolly and Lena Tolly his wife and so the said John W. Roberts, James B. Turner and W. S. Gibbs, and each of them by means of the said false pretenses and representations so made as aforesaid and by means and the use of said false and fraudulent abstract aforesaid, unlawfully, feloniously and designedly did obtain of and receive from the said S. L. Tolly the goods and property of the said S. L. Tolly hereinbefore described of the value of six hundred dollars, with the felonious intent him the said S. L. Tolly then and there to cheat and defraud of the same; whereas in truth and in fact the said "W. S. Gibbs was not then and there the owner'of the said Texas county land or any part thereof and did not then and there have any right to sell and convey the same or any part thereof, and pass good title thereto by writing in the blank space left in said deed hereinbefore set forth for the name of the grantee thereof the name of said S. L. Tolly or other person or in any other manner whatever, nor did the said Lou R. Cornell and G. W. Cornell, her husband, or either of them own said land or any part thereof on said June 15, 1904, or at any other time, nor did they or either of them at any time have the right to sell and convey said land and pass good title thereto; and in truth and in fact said abstract herein-before set forth was not then and there either a full, true or correct statement of all conveyances of said land from the United States patent thereof to the date of June 15, 1904, that were of record in the county of Texas and the State of Missouri, but in truth and in fact each and every pretended conveyance in said abstract was then and there false and not a single conveyance in said abstract then and there set forth was ever made and recorded in said Texas county, Missouri, and in truth and in fact said abstract did not then and there*717 show a single conveyance of said land that was ever actually made and recorded in said Texas county, Missouri, all of which they the said John W. Roberts, James B. Turner and W. S. Gibbs and each of them then and there well knew, against the peace and dignity of the State.”
Upon application of the defendant and his coindictees, a severance was granted, and on the 24th day of January, 1906, after several continuances, the defendant was placed upon trial, the State having elected to try him first. Defendant filed a demurrer to the information, also a motion to quash the same, both of which were overruled by the court. The trial resulted in the conviction of defendant, and his punishment was assessed at five years in the penitentiary. Defendant’s motion for a new trial and in arrest of judgment having been overruled, he appeals to this court.
The case was tried on the theory of a conspiracy between the defendant and James B. Turner and W. S. Gibbs to obtain the property described in the information by means of false pretenses and representations.
The facts developed by the testimony are about as follows: S. L. Tolly owned a' rooming house at 1123 Oak street, Kansas City, which house contained eleven rooms, bedding, furniture, carpets, - dishes and other utensils, the said personal property being worth about $600. Mr. Tolly and his wife on July 15, 1904, went to the office of James B. Turner in response to an invitation by Turner to call at his office for the purpose of negotiating a trade, Mr. Tolly wishing to dispose of the property alluded to. Turner represented that there was a man who had 160 acres of land in Texas county, Missouri, and who desired to trade it for a rooming house; that the man was a bachelor and wanted some place to stay at. Tolly and his wife were in Turner’s office only a few minutes when W. ¡3. Gibbs came in, and Turner said, “This is the man that had this land, and
The testimony of Mr. and Mrs. Tolly with, reference to the whole transaction was substantially the same, differing only in a few details. While he said that Turner had been to see them and had requested them to come to his office about the proposed trade, Mrs. Tolly testified, in addition, that Gibbs went out to look at the house, and that he said, “You go down to Mr. Turner’s office, and he will see you- and tell you my proposition; he will -tell you about the trade. ’ ’ She also testified that the first time Turner sent them to defendant’s office they were unable to find- it, and that while looking for the office she saw Gibbs go in a door which she afterwards learned was the door to the defendant’s office. That being unable to locate defendant’s office the first time, they went back to Turner, and he then gave them a card with defendant’s name and address thereon.
The State placed on the witness stand Silas W. Grant, who testified that he had lived at Cabool, Texas county, for twenty years; that he was then the owner and in possession of the west half of section 9, township 28, range 11, in Texas county, and had been in possession of it since 1902; that he never knew a woman in Texas county named Lou R. Cornell, nor any man there by the name of W. S. Gibbs. The .witness identified a certified copy of a deed dated November 3,1902, from David J. Adams to Silas W. Grant, for the west half of section 9, township 28, range 11, in Texas county, containing 320 acres, certified by the recorder of deeds of Texas county as a true copy of a warranty deed filed for record in his office on the 17th day of December, 1902.
Milton Swinde, an attorney, testified that he took the abstract referred to to Texas county, and made an examination of the records in the recorder’s office there,
C. W. Elrod testified for the State, detailing a transaction between his mother, Margaret E. Coleman, and the three parties informed against in this case, Eoberts, Turner and Gibbs, the details of which were in almost every respect similar to those of this case, and by which his mother was induced to part with a stock of groceries worth about $800 for which she received nothing save a worthless abstract and deed. Elrod testified that the said transaction was consummated on the forenoon of July 15, 1904, which was the same day the Tollys parted with their property.
At the conclusion of the State’s evidence the defendant demurred thereto on the ground that no evidence had been shown in the case connecting the defendant with the pretenses alleged to have been made by him in the information, and that no evidence had been introduced in the case showing that a conspiracy existed between the defendant, John W. Eoberts, and W. S. Gibbs and J. B. Turner, and by reason of the variance between the proof and the allegations of the information. The court overruled the demurrer, and defendant excepted.
OPINION.
It is insisted for defendant that the information is fatally defective for several reasons, the first being that it attempts to set up and plead as a false token an abstract of title to certain land described in the information, but wholly fails to allege and charge that the defendant feloniously, designedly and falsely pretended that it was a true abstract and correctly rep>resented the title. From a careful reading of the information, it is apparent that it attempts to set up and plead as a false token an abstract of title to the land in question, without alleging and charging that the
Another objection urged against the information is that it alleges that the defendants feloniously and falsely pretended and said to the said S. L. Tolly that the said W. S. Gibbs was then and there the owner of said real estate, “by virtue of the premises, to-wit;” and then sets forth the specific pretenses that were made, thereby pleading the former allegation of the information as a conclusion derived from the latter pretenses specifically set forth, and which said latter specified pretenses were not alleged to have been designedly, feloniously and falsely made.
We do not think the words “by virtue of the premises, to-wit, ’ ’ are of any significance or that they have any place in the information. They may, therefore, be entirely disregarded as surplusage. As used, they seem to be meaningless, and do not in any way affect the information.
It is also insisted that the information is fatally defective because it does not allege that the deed for the land was delivered to and received by S. L. Tolly in exchange for the personal property alleged to have been obtained from him. But it does allege that Tolly did sell and deliver his property in exchange for said alleged pretended conveyance, which means the same thing, the terms “deliver” and “exchange” only being used in an inverse order.
The information, it is contended, is also defective for the additional reason that the scienter is imperfectly alleged, in the conclusion of the information, in the general words, “all of which they, the said John W. Roberts, James B. Turner and W. S. Gibbs, and each of them, then and there well knew.”
In State v. Janson, 80 Mo. 97, which was a prosecution for obtaining money by false pretenses, it was held that the indictment, which set out the pretenses, nega
Instruction number one is predicated upon and almost a literal copy of the information, and is subject to the same criticism. It is erroneous for the same reason that the information is defective. Besides, it is entirely too long. A few short, pointed instructions are much better and much more readily comprehended than long, complex ones.
Defendant insists that the court erred in refusing to give instruction numbered 1 asked by him. It reads as follows:
“1. The court instructs the jury that any declaration made by W. S. Gibbs or J. B. Turner to any of the witnesses in this case or to any other person relative to the transfer of the grocery store of Mrs. M. EL Coleman, are not binding upon the defendant in this case and that they will wholly disregard all such declarations as have been shown in reference thereto, to have been made by them, and the court further instructs the jury that the evidence of the witness Elrod was wholly incompetent for any purpose in this case and that in finding their verdict they will disregard all of such witness’s testimony.”
It is argued by defendant that the transaction be
The record discloses that, on the 11th day of July, 1904, in response to an advertisement for the sale of a stock of groceries by Mrs. Margaret Coleman, witness Elrod’s mother, J. B. Turner wrote her a note asking her to call at his office in Kansas City, and stating that he had a proposition to make that she could not afford to turn down. Next morning Elrod called at Turner’s office and had a conversation with him respecting the sale of the goods, and thereafter Gibbs went to look at the goods, which were estimated to be. worth from $800 to $1,000. On the forenoon of July 15, 1904, Mrs. Coleman and Elrod called at Turner’s office, when, the sale or exchange of the goods for Texas county land was effected, under precisely the same terms and conditions, even to the minutest details that afterwards, on the same day, were observed by the same parties, Roberts, Turner and Gibbs, in the transaction by which they obtained the household goods owned by S.. L. Tolly, and with the same disastrous results to Mrs. Coleman as to Mr. Tolly. This, evidence was unquestionably admissible for the purpose of showing a common- fraudulent purpose and intent to cheat and defraud.' . [State v. Balch, 136 Mo. 103; State v. Wilson, 143 Mo. 334.] It may be observed, moreover, that the transaction between the said parties and Mrs. Coleman need not have occurred prior to the Tolly transaction, in order to render evidence thereof admissible', if it oc
In State v. Myers, 82 Mo. 558, the question was, asín the case at bar, one of fraudulent intent, and the "court quoted with approval the following from Wood v. United States, 16 Pet. 342: “The question was one of fraudulent-intent or not, and upon questions of that sort, where the intent of the party is matter in issue, it has always been deemed allowable, as well in criminal as civil cases, to introduce evidence of other acts and doings of -the party of a kindred character, in order to illustrate or establish his intent or motive, in the particular act directly in judgment. Indeed, in no other way would it be. practicable in many cases to establish such intent or motive, for the single act, taken by itself, may not be decisive either way; but taken in connection with others of a like character and nature, the intent and motive may be demonstrated almost with a conclusive certainty. They constitute exceptions to the general rule, excluding evidence not comprehended within the issue; or rather, perhaps, it may with more certainty be said, the exception is necessarily embodied in the very substance of the rule; for whatever does legally conduce to establish the points in issue, is necessarily embraced in it, and, therefore, a proper subject, of proof, whether it be direct or only presumptive. ”
The rule announced in the Myers ease has been followed ever since. [State v. Cooper, 85 Mo. 256; State v. Bayne, 88 Mo. 604; State v. Sarony, 95 Mo. 349; State v. Balch, supra; State v. Wilson, supra.]
Defendant’s next insistence is that the declarations of Turner and Gibbs were wholly incompetent as against him, and that no evidence was introduced by the State to show a conspiracy.
It is well settled that in order that the acts and
We are unable to agree that the evidence in this case does not tend to show any connection or conspiracy between the defendant and Turner and Gibbs. That there was no direct or positive evidence may be- true, but direct proof was not indispensable. A conspiracy may be shown by circumstantial evidence alone, and in the reception of such evidence great latitude is allowed. “It is no objection that the evidence covers a great many transactions and extends over a long period of time, provided, however, that the facts shown have some bearing upon, and tendency to prove, the ultimate fact at issue. But much discretion is left to the trial court, in a case depending on circumstantial evidence, and its rulings will be sustained if the testimony which is admitted tends even remotely to- establish the ultimate fact.” [8 Cyc. Law and Procedure, 678.] The facts and circumstances stated in evidence tended strongly to show a conspiracy between Roberts, Turner and Gibbs to cheat and defraud Tolly out of his property, and that in pursuance of such conspiracy they did so. After the conspiracy was shown, the admissions, statements and acts of each conspirator, during the con
The purpose was to cheat and defraud Tolly out of his household goods, and in order to carry out that purpose it was necessary for the defendant to first deceive Tolly by the promise that he, defendant, would loan him $600 on the land. While the transaction, in so far as Tolly’s property was concerned, was ended when he delivered the property and executed the bill of sale thereto, yet the common enterprise was not ended until defendant had refused to make Tolly the promised loan upon the land. But for this promise by defendant the sale by Tolly of his goods would not have been made. Therefore, any declaration or statement made up to that time, by either one of the conspirators in pursuance of the common design, was admissible against the others. There is no principle of law better settled than that the declarations of one co-conspirator against another made after the consummation of the common enterprise are not admissible. There does not seem to have been any statement or declaration made by either Gibbs or Turner after the common enterprise was ended admitted in evidence. But any act done, or declaration, statement or admission made by defendant at any time with respect to the obtaining of Tolly’s property was admissible in evidence against himself, not primarily for the purpose of showing that a conspiracy existed between himself, Turner and Gibbs to cheat and defraud Tolly, but for the purpose of showing the part he took in defrauding Tolly of his property in pursuance of the plan formed between the conspirators to do so.
We know of no rule of law which renders inadmissible in evidence the acts, statements or admissions of a defendant upon trial for a criminal offense which may tend to connect him with the offense with which he is charged, even though such acts, statements or admis
There are many other assignments of error made and discussed by counsel for defendant, but as they seem to be mostly without merit and exceedingly technical, and the matters complained of may not occur upon another trial of the cause, we have not thought it necessary to discuss them.
For the errors indicated the judgment is reversed and the cause remanded, in order that the information may be amended or a new information filed against defendant, if so desired by the prosecuting attorney.