244 Mo. 161 | Mo. | 1912
Defendant, James McPhetridge and Alice Scheffler were jointly indicted in the Ray County Circuit Court for obtaining money by false pretenses from one Silas Robinson. At the February term, 1911, of said court, a severance having been granted defendant, he was placed on trial upon the first count of said indictment, found guilty, and sentenced to two years in the penitentiary.
It appears from the evidence that the defendant, his co-indictees and Silas Robinson, the party victim
The evidence for the State tends to show that the three defendants in the indictment entered into a conspiracy and agreement to obtain money from Robinson by falsely representing to him that he had been sued by the husband of Alice Scheffler for .alienating his wife’s affections, and inducing Robinson to pay money in order to effect a settlement of said alleged, suit. Pursuant to this conspiracy, on the 31st day of December, 1909, defendant Starr called Robinson into his drug store, took from his pocket a paper which he represented to Robinson was a copy of the petition in such alienation suit, and read what purported to be the contents thereof to the effect that a suit for $30’,000 damages had been brought by Barney Scheffler in the. Ray Circuit Court against Robinson. He then ad-, vised Robinson to compromise said suit, and said that he could have it compromised for $5,000. After some parleying, Robinson agreed to give $3000’ for that purpose. On that evening, it being Saturday, Robinson drew his check for $3000, and same was given to Mc-Phetridge tb hold until the following Monday morning, at which time Robinson drew $2000 in cash from a Hardin bank, which money was paid over to Mr.Phetridge, together with a check for $1000, the latter to be held until the remaining cash could be procured, and’ the $3000 check was surrendered. On Monday evening Robinson went to the office of McPhetridge with the remaining $1000, met Mrs. Scheffler there, got from McPhetridge the $2000 which had been given him that morning, and counted out the entire $3000’, which he handed to Mrs. Scheffler. Robinson then destroyed the’ $1000 check. Subsequently this $3000 was equally divided between Starr, McPhetridge and Alice Scheffler.
The defendant testified that he acted in good faith throughout the matter, that he believed that a suit had been brought as he had represented to Eobinson, and that he was trying to do Eobinson a favor.
The State entered a nol. pros, as to McPhetridge, and defendant Starr was alone placed on trial.
Immediately after the payment of the money as above detailed, McPhetridge left the State because of this transaction. He testified for the State at the trial, denied that he had represented to Starr that this paper shown to Eobinson was a copy of any petition, and stated that he did not tell Starr that an alienation suit was pending against Eobinson, but that he did give Starr a memorandum containing the substance of some depositions taken in the divorce suit.
The defendant, testifying as a witness in his own behalf, admitted on cross-examination that he had been convicted of selling liquor without a license several years ago. Several witnesses also testified for the State that Starr’s reputation for morality was bad.
Defendant has filed twenty-two assignments of error. Space will not permit a discussion of all of
I. It is urged that the indictment is‘insufficient, and also that the demurrer to the State’s evidence should have been sustained, upon the grounds that the representations charged in the indictment were absurd or irrational, and that Robinson had at the very time the means at hand of detecting their falsity. Whether the representations made by defendant were absurd or irrational depends upon two things. One is the character of the representations themselves, and the other is the situation and capacity of the victim. The real question, is whether, under all the circumstances of the case, Robinson had reasonable grounds, from his point of view, to believe the representations and to act upon them. He was seventy-eight years old, a retired farmer. He had been guilty of criminal intimacy with Mrs. Scheffler. He had unbounded confidence in Starr, with whom he had been more or less intimate for thirty years. The statement that Scheffler had brought suit against him for alienation was one quite likely to be true. That Starr should have a copy of the petition would not to him seem at all unlikely. No reason would appear to him why Starr should attempt to deceive him in the matter, or was engaged in an effort to swindle him out of money. Victims in cases of this character are usually selected because of their credulity and susceptibility to imposition. Nor did the law require Robinson to verify the statements of Starr by communicating with the court to ascertain whether or not a petition had been filed. One who deliberately imposes upon another should not be heard to say that his victim was over-credulous or negligent in believing what he was told. The law measures the responsibility of a defendant in such case not by what would impose upon a man of acumen, or upon one of ordinary ability, but by what was calculated to impose
II. It is also urged that defendant was not guilty of obtaining money under false pretenses, but, if guilty at all, was guilty of larceny. This upon the theory that the money was paid over to Starr by Robinson as his agent to be used by Starr to settle the case, and that Robinson parted with the possession but not the title to the money. The trouble with this theory is that the facts do not sustain it. The money was not paid defendant Starr for the purpose of delivering same to Mrs. Scheffler, but was paid to Mrs. Scheffler by Robinson in the office of McPhetridge. Until then the money had been held for Robinson by McPhetridge, who returned it to him, and Robinson himself paid it to Mrs. Scheffler. Robinson parted to her with both the possession and title to the money. Defendant Starr is liable on the theory of conspiracy. Robinson was given to understand by the conspirators that the payment would result in settling a suit which Starr represented to him had been filed by Scheffler against him for alienating the affections of Scheffler’s wife, which representation Robinson believed to be true. The offense charged in the indictment was, under the evfl deuce, complete against all three of the defendants.
III. Defendant claims that the demurrer to the evidence should have been sustained because of the failure to prove that the money belonged to Robinson, and we are cited to two cases from the St. Louis Court of Appeals (State v. James, 133 Mo. App. 300, and State v. Roswell, 153 Mo. App. 338) wherein it was held that presumptive ownership of money in one’s possession is not sufficient to establish ownership in a criminal case. In the Roswell case the defendant took from the pocket of the prosecutor a pocket-book con
IY. It is insisted that the court should have submitted to the jury the question whether the representations made were calculated to deceive Robinson. We think not. It is for the court to determine as a matter of law whether the representations are calculated to deceive.
In State v. Keyes, supra, this court says: “In causes for obtaining money by false and fraudulent representations, when the testimony is all in, then it is purely a question of law with the courts as to whether or not the representations indicated by the testimony in the cause fall within the provisions of the statute denouncing the offense, and if they do, then it is the duty of the court to require the jury to find
V. A witness for the State was asked as to his knowledge of the general reputation of the defendant for morality. Objection was made because the question was not confined to a time prior to the date of the offense on trial. This objection was overruled. The court committed no error in its ruling on this question. The inquiry as to the reputation of the defendant was directed to his credibility as a witness; that is, whether at the time he was testifying he was worthy of belief. This being the purpose for which the testimony was admitted, it certainly was competent to show the reputation of the defendant in this regard up to the time he appeared as a witness. It would be illogical to attempt to affect the credibility of a witness on the date he testifies by evidence of his reputation confined to some prior date. Of course, reputation is not built up in a day, and proof of reputation must necessarily cover a considerable space of time. We can perceive no reason why that time should not continue up to the very day the witness testifies. This conclusion is in harmony with the ruling of this court in State v. Summar, 143 Mo. l. c. 230, where we held that “when a witness is to be impeached the issue is what is his reputation now.” The rule is stated as follows in 3 Ency. of Ev., p. 28: “But the issue raised by evidence of the character of a witness relates to his credibility at the time of testifying, and the testimony should relate to his reputation at that time.”
VI. On cross-examination, the defendant admitted his conviction, several years before the date of the trial, for selling liquor without a license. Also several witnesses for the State testified to the bad reputation of defendant. When the court finished reading its instructions to the jury, the defendant made
Under our system of jurisprudence, the court determines the law, and the jury the facts, in a case, and it is the duty of the court to instruct the jury upon the law necessary for their information in passing upon questions of fact. In civil cases, under the statute, section 1987, Revised Statutes 1909, the court is required to give only such instructions as are requested in writing by the parties. [Brown v. Globe Printing Co., 213 Mo. 611.] In criminal cases a different rule prevails. Here there are no written pleadings presenting issues. The charge may involve different grades of crime and punishment which must be defined by the court, ,-and generally the issues of law raised by the evidence need to be explained by the court to the jury for their information and guidance. Beginning with Hardy v. State, 7 Mo. 607 (1842), this court has uniformly held it to be the duty of the trial court to instruct the jury on the law of the case. The Hardy case involved the question of the right of the jury to decide the law as well as the facts. On this point this court said: “It is the duty of the judge of a criminal
In State v. Lowe, 93 Mo. 570, where the defendant offered an improperly worded instruction on a collateral question concerning insanity, it is said: “If the instruction was not properly worded, it was the duty of the court, under our practice, to give a correct instruction on the point.” Further, “I am inclined to think that an instruction embodying the principle evidently intended to be contained in the one asked should have been given.”
To the same effect, as to the duty to give proper instructions where those asked are in improper form, are State v. Hickam, 95 Mo. 352; State v. Moore, 160 Mo. 443; State v. Reed, 154 Mo. 122; State v. Hathhorn, 166 Mo. 229; State v. Conway, 241 Mo. 271.
In State v. Taylor, 118 Mo. l. c. 172, speaking of the Brooks ease, we said: “The majority of the court held that as to collateral matters defendant must ask the instruction if he desired it. ’ ’
In State v. McNamara, 100 Mo. 100, the-court went so far as to hold that it is not the duty of the trial court to re-form and give an instruction offered in improper form upon a collateral question, even if it contain a principle applicable to the facts. This ruling was disapproved in State v. Clark, 147 Mo. l. c. 38, where the court reaffirms the doctrine that the trial court should correct and give an instruction offered in improper form. But the McNamara case has not been overruled
In State v. Murphy, 118 Mo. l. c. 15, speaking of what was there ruled to be a collateral question, this is said “In the absence of any instructions being asked, it was not reversible error for the court to omit to charge on that phase of the evidence.”
In State v. Horn, 115 Mo. l. c. 418, exception was taken to the failure of the trial court to instruct the jury as to the attempted impeachment by the State of several witnesses who testified for the defendant. This court said: “While by section 4208, Revised Statutes 1889, it is made the duty of the trial court to instruct the jury in writing upon all questions of law arising in the ease which are necessary for their information in giving ther verdict, and failure to do so when a defendant has been found guilty shall be good cause for setting aside the verdict, the court is not bound to instruct in regard to matters that are not pertinent to the issues involved.”
In State v. Harris, 232 Mo. l. c. 321, we say: “Numerous decisions of this.court hold that, in the absence of a request from the defendant, it is not reversible error to fail to instruct upon collateral questions.”
In State v. Conway, supra, speaking of the statute which requires the court to instruct the jury upon all questions “necessary for their information in giving their verdict,” we say: “That language, fairly construed, does not mean that the court shall instruct upon any and every question, but only such as are necessary and essential to intelligent action by the jury in the trial of the case before them.”
State v. Nicholas, 222 Mo. l. c. 434, holds as follows: “It was plainly the duty of the court by its instructions to require the jury to find all the essen
Consideration of the foregoing decisions, and others of similar import, discussion of which want of space forbids, shows that from 1842 this court has preserved a clear distinction between questions arising upon the issues, which may be termed essential questions, and those collateral merely. The earlier cases, in which no mention is made of collateral questions, and which say that the court must instruct on the law of the case, relate to essential questions. In Conley v. State, 12 Mo. 462, the trial court refused certain proper instructions on the collateral question of an extrajudicial confession. This court ruled that the instructions were proper, but said: “"We do not feel inclined to reverse this case for the court’s re-' fusal to give the instructions prayed for by defendant, and if that was the only error we might pass over it. ’ ’ And in State v. Clump, 16 Mo. 385, wherein the trial court refused to instruct that the evidence of verbal confessions should be received with caution, it is said: “This court will not reverse for refusing such instructions in civil or criminal cases.”
These cases clearly negative the idea that the court is in duty bound to instruct on every question of law which may arise, and which would justify an instruction in proper form. In the recent case of State v. Conway, supra, Kennish, J., has fully and forcefully discussed the law which imposes the duty upon the court to instruct on essential or necessary questions. In that case he mates a distinction between necessary and collateral questions, as indicated by the paragraph quoted above from his opinion.
The propositions established by the decisions are: That it is the duty of the court, whether requested or
The conclusion reached above is fortified by the statute law on the subject of instructions in criminal cases. In 1845, the following statute was enacted:
“The court shall not, on the trial qf the issue on any indictment, sum up or comment upon the evidence, or charge the jury as to matter of fact, unless requested so to do by the prosecuting attorney, and the defendant or his counsel, but the court may instruct the jury on any point of law arising in the cause, which instructions shall be in writing, unless the prosecuting attorney and the defendant consent to its being given orally.” [R. S. 1845, p. 882, Sec. 28.]
This statute has remained in force, without substantial change, and is now section 5244, Revised Statutes 1909. Said statute receives no special mention in the early decisions which, following the Hardy case in the 7th Mo., hold it to be mandatory upon the court to instruct on the law of the case, these decisions, however, as we construe them, limiting the rule to essential questions.
In 1879 a new section in criminal procedure was incorporated in the revision of that year by a revised bill, taking effect November 11, 1879 (Sec. 1908, R. S. 1879), which provides that: “The court must instruct the jury in writing upon all questions of law arising in the case which are necessary for their information in giving their verdict.”
"We have pointed out above that prior to this act the court had made a distinction between essential and collateral questions, holding the law to be mandatory only as to the former. The statute of 1879 crystal
This Act of 1879 did not repeal the Act of' 1845, which provides that the court “may instruct the jury on any point of law arising in the cause.” This, as we have shown, was held to be mandatory as to essential questions. Both statutes stand as the law. They must be construed together. The Statute of 1879 is useless and meaningless if it also covers any question that may arise. Plainly it carves out of the 1845' statute essential questions, i. e., questions for the information of the jury in giving their verdict,.and as,to such “necessary” questions, the court must instruct. Upon other questions — collateral questions — the Statute of 1879 has no force or effect. In the Gonway case we have elucidated the law upon the duty of the court to instruct on essential questions. We now hold that as to collateral questions, the parties must formulate and ask such instructions as they may be entitled to, and such instructions should embody the principle for which they contend. If improperly framed, the trial court should correctly reframe them, if the principle embodied is applicable to the facts;
Questions of law.arising upon evidence.impeaching witnesses are collateral questions. [State v. Kilgore, supra.] In the case at bar the defendant presented no instruction upon this point, but contented himsélf with a vague verbal request which did not indicate the nature of the instruction desired. At the same time he offered several wiitten instructions on various other questions. We are of the opinion that, under these conditions, the court was not required to formulate an instruction upon the proposition.
Finding no reversible error, the judgment is affirmed.