143 Mo. 334 | Mo. | 1898
This is an appeal from the criminal court'of Jackson county from a conviction under section 3564, Revised Statutes 1889, for fraudulently and feloniously obtaining merchandise under an agreement to be paid for on delivery and fraudulently selling and disposing of the same before paying or satisfying the owner therefor. There were three counts in the indictment, but as the State dismissed as to the second and
The first count is in these words: “The grand jurors for the State of Missouri in and for the body of the county of Jackson upon their oath present that Emmet H. Wilson and E. E. Wilson, whose Christian names in full are to these grand jurors unknown, late of the county aforesaid, on the 13th day of May, 1896, at the county of Jackson, State of Missouri, with felonious intent to cheat and defraud one Stanton B. Willock, fraudulently, unlawfully and feloniously did agree and contract with the said Stanton B. Willock (under the name of S. B. Willock) for the purchase of certain goods, wares and merchandise, to wit; three thousand dozens of eggs, of the value of two hundred and fifty-five dollars, at and for the price of two hundred and fifty-five dollars, to be paid for by the said Emmet H. Wilson and E. E. Wilson, in cash upon delivery of the said goods, wares and merchandise, before described, by the said Stanton B. Willock, to them, the said Emmet H. Wilson and E. E. Wilson, in the city of Kansas City, in Jackson county, Missouri; and that the said Emmet H. Wilson and E. E. Wilson, in pursuance of said fraudulent and felonious intent of them, the said Emmet H. Wilson and E. E. Wilson, to fraudulently and feloniously cheat and defraud the said Stanton B. Willock of the said goods, wares and merchandise, before described, the personal property of him, the said Stanton B. Willock, of the value of two hundred and fifty-five dollars, did then and there fraudulently, unlawfully and feloniously obtain possession of the said goods, wares and merchandise, before described, under the said contract and agreement aforesaid, and in further pursuance of the said fraudulent and felonious intent of them, the said
The defendant was duly arraigned, pleaded not guilty, was tried and convicted and his punishment assessed at two years in the penitentiary. Motions to quash the indictment, for new trial and in arrest of
The assignments of error can best be considered in the order of defendant’s brief.
I. As the accusation is based upon a statute, its sufficiency must be measured by the statute. The prosecution relies upon section 3564, Revised Statutes 1889. So much thereof as is applicable here is as follows: ....... “Every person who shall, with intent to cheat and defraud another, agree or contract with such other person or his agent, clerk or servant for the purchase of any goods, wares, merchandise or other property whatsoever, to le paid for upon delivery, and shall, in pursuance of such intent to cheat and defraud, after obtaining possession of any such property, sell, transfer, secrete or dispose of the same.before paying or satisfying the owner or his agent, clerk or servant therefor, shall, upon conviction thereof, be punished in the same manner, and to the same extent as for feloniously stealing the money, property or thing as obtained.”
One of the principal complaints lodged against this indictment is its-failure to charge that the contract for the eggs was “designedly made” and that the defendants “designedly” agreed to pay cash and “designedly” obtained possession of the eggs. This objection evidently is upon the fact that section 3564 also makes “every person who, with intent to cheat and defraud another, shall designedly, by color of any false token or writing or by any other false pretense obtain the signature of any person to any written instrument or obtain from any person any money, personal property, right in action or other valuable thing or effect whatsoever,” guilty of a felony, and punishable in the same manner as if convicted of grand larceny. But it is apparent that so much of the section as governs
The charge of duplicity is based upon the concluding words of the indictment “that the defendants did take, steal and carry away the goods.” It is urged that by the use of these words the pleader has joined in one count two separate and distinct offenses. These words alone merely state a conclusion of law, and may be disregarded as surplusage. The form however is
II. No error was committed in permitting Mr. "Willock to state that the terms on which the eggs were sold to defendant were 4 ‘ Cash. Spot cash at my door. ’ ’ UQ. To be paid on delivery?” “A. Yes, sir.” That
The evidence in regard to the printed heads on his bills was a matter to be weighed by the jury, not this court. It did not follow conclusively that because Willock used an ordinary printed heading (stating all bills must be paid by a certain time) to make out the account against defendant, that it could not have been a sale for cash on delivery. All these circumstances and their explanation went to the credit, not the competency, of the witness.
III. Neither do we think error was committed in permitting the State to prove by witnesses Howe, Hilt, Dunkeson, Phillips, Townsend, Hamblin and Pudge that on the same day in the same city the defendant made similar contracts with them; got their goods, to the extent of several car loads and did not pay them for them. The State offered this evidence to show a common fraudulent purpose and intent on the part of defendant to gather together a large quantity of butter and eggs on promises to pay cash for the same and having shipped the goods beyond the reach of these creditors failed to pay them for these supplies. This evidence was followed up by testimony that defendant absconded from Kansas City and went to Kansas and remained away until Wednesday evening succeeding the Saturday on which he obtained the goods and shipped them out to Boston. After waiting sufficient time to allow the goods to reach Boston defendant returned to Kansas City but avoided his place of business. The evidence is overwhelming that he had fully determined upon quitting business. That the evidence of these contemporaneous purchases and failures to pay others whose goods he had thus obtained was .admissible to
In State v. Myers, 82 Mo. 558, Judge Philips, then a commissioner of this court, in .an exhaustive review of both English and American authorities, deduced the conclusion that, while as a general proposition a distinct crime for which the party might be separately proceeded against could not be given in evidence against the prisoner on trial for a single offense, this well settled rule has its exceptions equally well settled. He maintains this view of the law with quotations from the authorities, among others the language of Judge Story in Wood v. U. S., 16 Pet. 342, as follows: “The question was one of fraudulent intent or
not, and upon questions of that sort, where the intent of the party is the 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.” State v, Myers on this point has been consistently followed and adhered to by this court in subsequent decisions. State v. Cooper, 85 Mo. 256; State v. Bayne, 88 Mo. 604; State v. Sarony, 95 Mo. 349; State v. Balch, 136 Mo. 103.
IY. The evidence tendered by-defendant of a letter from Wilson & Johnson of Boston to the’Interstate National Bank and letters from Boston banks, as to the standing of Wilson & Johnson, of Boston, and defendant’s course-of dealing with the bank, and the telegram of Wilson & Johnson to the bank four days after defendant’s failure, declining to further honor defendant’s drafts, was all properly excluded. It had no possible relevancy to the question at issue. The State was bound to show these goods were to be paid for on delivery. If this was established it was entirely
Y. We have carefully.gone over the instructions given by the court. They fully cover the law of the case, and it is unnecessary to encumber the report of the case with them. The instructions asked by the defendant were properly refused; They were not the law and were not based upon any testimony justifying the court in giving them.
If this statute is ever to be enforced this seems to be a most appropriate case. Oases are rare in which the fraudulent conduct of a defendant has been so thoroughly exposed. Having examined this record al) ovo we think the verdict is in accordance with the evidence, and the judgment is affirmed.