263 Mo. 360 | Mo. | 1915
-The appellant and one W. J. Yoss were charged in an information filed in the criminal court of Jackson county with obtaining from one Gf. F. Yogel certain personal property by means of false statements and fraudulent pretenses and representations under section 4565, Revised Statutes 1909. Upon a joint trial both defendants were convicted and each sentenced to two years’ imprisonment in the penitentiary. The appellant, after an unsuccessful attempt to secure a new trial, appealed to this court, gave a bail bond which was approved, and a supersedeas was granted pending the review of the case here.
Yogel, the prosecuting witness, a machinist, lived in Kansas City, Missouri, and owned an automobile, a motorcycle and the furnishings for a shooting gal
There was no foundation in fact for the statements made by Voss to influence the actions of Vogel. The land described in the deed from the appellant to Vogel, at the time of the trade, was owned and in the possession on one Gr. S. Clark, who, supplementing the documentary evidence as to his title, stated that he owned the land and had been in actual possession of it continuously since 1907, and that he had not sold or transferred same. Clark’s testimony was corroborated by that of the recorder of Dent county and the owner of the abstracts of titles at Salem, the county seat.
Appellant testified that he never met Vogel or Voss until after the trade in question was made. That he got the land from an old man by the name of Allendorph living in Kansas City, and identified an abstract of title which he stated he had received from Allendorph at that time.
That he placed the land and abstract in the hands of a Mr. Cadien for sale. That the latter had died in August before the trial. That he had never seen the land in question. That he told his agent to have the abstract brought down to date and then deliver it to the “other agent.” That he executed the deed, leaving the grantee’s name blank, and delivered it to his agent Cadien and did not see'the personal property he had traded for until his agent had procured a bill of sale of it.
On cross-examination he said that he got three copies of the abstract from Allendorph. That the abstracts he had were certified, one by J. W. Walmsley and the other by J. W. Steel, and both for the same land and both alike except as to the names of the parties signing the certificates. He - did not know Steel or
William J. Voss, co-defendant, testified that the first time he ever saw the prosecuting witness was in a Mr. Clay’s office in the Century Building*, Kansas City, lie did not speak to him on that occasion, and about one and one-half hours later Vogel came into his office in the Ridge building and listed the automobiles, etc., with him- for trade and a few days later he met Mr. Cadien and mentioned to him that he had these articles for trade and Mr. Cadien submitted the land in question to him for exchange for the automobile. A few days later he saw Vogel and submitted the proposition of trading for this land to him. Vogel authorized him to trade for the land if it was clear. Ten days later he received an abstract of title to the land from Cadien and handed it to Vogel, telling him to have it examined by an attorney; that he did not know anything about the title and that it was up to him to find out what he had. He denied all statements testified to hy Vogel as to the value of the land, his acquaintance with it and all knowledge of the supposed owner. Two days after receiving the abstract Vogel came to his office and they together went to Mr. Cadien’s office and Vogel made out a bill of sale covering the automobile, etc. That he had met Shout, the appellant, for the first time the day before, when he took him to look at the automobile and other property. That he did not have any interest in the land or other property involved in the trade; that he made no statements about the value of the land, the abstract, the title, the deed, or the owner, because he knew nothing about them.
The foregoing information contains all the essentials necessary to properly charge the offense of obtaining goods by false pretenses under the statute (Sec. 4565, R. S. 1909; State v. Foley, 247 Mo. l. c. 628; State v. Donaldson, 243 Mo. 460; State v. Roberts, 201
The next contention is in regard to the refusal of the trial court to permit the following question to be answered by the prosecuting witness: “Why did you part with your property?” This at best but called for a conclusion, if answered by the witness. However, the objection thereto was general, the counsel for appellant stating no reason therefor, and the error if any in refusing to permit it to be answered is not preserved sufficiently to entitle it to be considered. [State v. Kanupka, 247 Mo. l. c. 714.]
Appellant also complains of the action of the trial court in overruling his objection to this question propounded to Yogel, the prosecuting witness: “What if anything did they tell you about making transactions of this kind — similar transactions?” The prosecuting witness in response to this question testified that appellant and defendant Voss had asked him to be permitted to “straighten up” the deal, that they had
It is also contended error was committed in overruling appellant’s objection to a question asked the recorder of deeds of Dent county by the prosecuting attorney, as follows: “Mr. Smalley: I hand you what purports to be an abstract of title marked ‘Exhibit A,’ and will get you to tell these gentlemen whether or not that abstract shows all the conveyances of that property from the Government grant to the month of September, 1911, as shown by the records of your office in Dent county, Missouri?” The witness, as the recorder of deeds of Dent county, had in his official possession at Salem, the county seat, the records of the transfers of real estate in that county. He had previously testified that he had examined these records to ascertain in whom the title was vested to the land alleged to have been exchanged by defendants for the personal property described in the information; that he was familiar with the record entries in regard to this land; that the so-called abstract, about which he was questioned and which had in the exchange been sub
Appellant also complains of tbe court’s refusal to permit him on direct examination to answer tbis question: “Was it on bis opinion, after he bad examined it, that you relied as to tbe title?” To understand tbe setting of tbis question a knowledge of tbe examination of appellant by bis counsel leading up to it is necessary. It is as follows:
“Q. Did you know anything about the title to tbe land? A. Well, I bad a party examine tbe title when I got it.
“The Court: Who was that? A. Mr. McKinley.
“Q. A lawyer? A. An abstracter.
*372 “Q. Live here in the city? A. Tes, sir.
“Q. The abstract you have under your arm, is that the one he examined? A. Tes, sir.”
The answer to the question, if it had been permitted and had been in the affirmative, would have constituted no defense. Put most strongly for appellant it meant that having had McKinley examine the title to the land appellant’s opinion in regard to same was based on this examination. The result of this examination is not disclosed, nor is it shown what the appellant’s opinion was as based thereon. The answer to the question was, therefore, excluded if for no other reason than that the question was vague and indefinite and no proper foundation had been laid to authorize same. The ruling of the trial court was proper, however, for a more substantial reason; it was sought by appellant’s testimony to establish his belief in the integrity of his title to the land by showing that he relied upon a memorandum made in regard thereto at sometime, somewhere, by McKinley, who is significantly absent at the time of the trial. Even the tyro knows that this character of testimony will not avail as a defense in this character of-proceeding; in addition, the answer, if made, would have fallen fairly within the designation of a self-serving declaration.
It is also contended that the admission of statements by one of the defendants after the consummation of the common enterprise, or, concretely, after the effecting of the exchange by which the property was ■obtained from the prosecuting witness, constituted reversible error.
Statements made by one conspirator concerning his connection with the crime, while not admissible after the consummation of the common enterprise against his co-conspirator, is admissible against him; and where two are jointly indicted and are being tried together and no request is made that the examination be limited to the conspirator testifying, the correctness
From all the facts in this case, it is evident that the defendants were acting in concert with a common purpose and intent in the commission of this offense, namely, to secure the property of the prosecuting witness by exchanging therefor the real estate which purported from the deed and the abstracts submitted to the prosecuting witness, to belong to the appellant. Voss, it is true, was the prime mover in the fraud, but his purpose could not have been consummated without his delivery of the deed made by the appellant to the prosecuting witness, and it was necessary that concert of action exist before this could have been brought about. Under this state of facts the testimony of the appellant, or, in fact, of the other defendant, for the purpose of showing a conspiracy was not improper, the rule being that where two persons act in concert in the commission of a crime with a common purpose and intent, statements or declarations of one are admissible against the other. [State v. Copeman, 186 Mo. 109.]
It is further contended that there was no direct evidence against appellant to sustain a verdict of guilty. A conspiracy like any other crime may be shown by circumstantial evidence. [State v. Fields, 234 Mo. l. c. 623.] The facts and circumstances are ample that appellant and the defendant Voss were acting in concert to accomplish the criminal purpose of obtaining the prosecuting witness’s property by means of the false and fraudulent pretense that the appellant was the owner of the land described in the deed made by appellant and his wife and delivered to the prosecuting witness in exchange for his property through the instrumentality of Voss. No direct evi
No errors having occurred herein warranting a reversal, the judgment of the trial court is affirmed, and it is so ordered.