The State v. Steele
| Decision Date | 15 March 1910 |
| Citation | 126 S.W. 406,226 Mo. 583 |
| Parties | THE STATE v. W. E. STEELE, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Criminal Court. -- Hon. Ralph S. Latshaw, Judge.
Reversed and remanded.
E. E Hairgrove and Geo. T. Longan for appellant.
The information does not charge an offense under the statutes. State v. Roberts, 210 Mo. 702; State v Bradley, 68 Mo. 140; Kelley's Crim. Pr. (2 Ed.), pp 481 and 169; State v. Janson, 89 Mo. 98; State v. Pickett, 174 Mo. 633; State v. Terley, 142 Mo. 403. Any instruction which contains over 1300 words must of necessity be an instruction that the ordinary jury can not be able to dissect and thoroughly understand. State v. Roberts, 210 Mo. 725. Instruction 1 is entirely too long and complex and is beyond the understanding of the ordinary man. By a careful analysis and a painful dissection the trained mind of a lawyer might digest it, but to the average juror it is misleading, and the negativing portion of it is so connected as to amount to a plain declaration on the part of the court that the abstract of title complained of was a false and fraudulent document. It is conceded to be proper pleading in an indictment or information to charge that the defendant falsely represented the note, the deed of trust and the abstract of title to be true and genuine and to negative these by alleging "whereas in truth and in fact they were false and fraudulent," but you cannot use this negativing language in an instruction without conveying to the minds of the jury the impression that the court is declaring as facts just what is alleged. Especially is this so in a long and complicated instruction like this one. This instruction is at fault again because it nowhere sets out the abstract of title, but in two places refers to the said false writing and token purporting to be an abstract of title "above set out and described" or "as above set forth." State v. Roberts, 201 Mo. 702.
Elliott W. Major, Attorney-General, and James T. Blair, Assistant Attorney-General, for the State.
(1) The information is good when measured by the requirements of section 1927, R. S. 1899, and the cases construing that section. State v. Turley, 142 Mo. 406; State v. Feazell, 132 Mo. 178; State v. Alexander, 119 Mo. 448; State v. Dines, 206 Mo. 653; State v. Wilson, 143 Mo. 342; State v. Barbee, 136 Mo. 441. The objections made to the information in the case of State v. Roberts are fully met by the allegations of the information in this case. State v. Roberts, 201 Mo. 710. The information is also good under section 2213, R. S. 1899. State v. Pickett, 174 Mo. 665; State v. Wilson, 223 Mo. 156; State v. Martin, 226 Mo. 538; State v. Porter, 75 Mo. 171. (2) The fifth and tenth assignments of the motion for new trial challenge the sufficiency of the evidence. There is no basis in the record for this complaint. State v. Alexander, 119 Mo. 448; State v. Miller, 212 Mo. 78; State v. Roberts, 201 Mo. 726. It is only necessary that there be some substantial evidence. The evidence in this case practically demonstrates appellant's guilt. This court does not disturb verdicts on the ground of the insufficiency of the evidence unless there is "an entire failure of proof, or the evidence is of such flimsy character as to authorize the inference that the verdict was the result of passion, prejudice or mistake." State v. Barton, 214 Mo. 321; State v. McGee, 212 Mo. 100; State v. Lockhart, 188 Mo. 432. (3) The first instruction required the jury to find affirmatively every material element of the offense charged in the information before returning a verdict of guilty. This was sufficient. While it is somewhat lengthy, yet so was the devious path which appellant traveled to effect his fraudulent purposes. It met the objections mentioned in State v. Roberts, 201 Mo. 725, and conformed to the standard fixed in State v. Wilson, 223 Mo. 156.
This cause is now pending in this court upon appeal on the part of the defendant from a judgment of the criminal court of Jackson county, Missouri, convicting him of having by false representations and pretenses obtained from one Phianna Wheaton certain household goods of the value of two hundred and sixty dollars.
The information in this cause is quite voluminous, in fact more so than there was any necessity for. As was said by the representative of the State, the Attorney-General, it resembles greatly a bill in equity in a complicated case; therefore, we shall not burden this opinion with a reproduction of it, but will, during the course of the opinion, make reference to certain portions of it in discussing the challenge on the part of the appellant as to its sufficiency.
The defendant, upon this information, was duly arraigned and entered his plea of not guilty. A jury was duly impaneled and the trial of the cause proceeded. Upon this trial there was a disagreement on the part of the jury and they were discharged. On April 29, 1909, a second jury was duly impaneled and the trial proceeded.
The evidence developed upon the trial tended to prove substantially the following state of facts: That in May, 1908, Mrs. Phianna Wheaton owned and was in possession of the household goods described in the information, having purchased them from a Mrs. Corlew on the 5th day of the month mentioned. Learning that the house she was occupying was to be torn down Mrs. Wheaton told the agent through whom she purchased the goods that she desired to sell them. A short time thereafter this man brought defendant and his codefendant, Watts, to Mrs. Wheaton's house. Mrs. Wheaton's son and daughter were present at this meeting. Defendant wanted to buy the goods, and offered the note described in the information for the property, exhibiting the trust deed, by which the note purported to be secured, and representing that the abstract tendered for examination, it being the abstract described in the information, was a correct abstract of title to certain lands in Stonewall county, Texas, which lands the deed of trust mentioned purported to cover. Defendant told Mrs. Wheaton that the abstract shown her was the "original abstract" and was genuine. He represented that the firm of abstracters by whom the abstract purported to have been made, was a reliable one. As to the note, appellant represented to Mrs. Wheaton that he knew the payor's, Cole's, handwriting, that the note was signed by Cole and that Cole was a rich man; that he had known Cole a long time, and that he was a "good and wealthy man." Appellant also represented to Mrs. Wheaton that the deed of trust which he showed her, that described in the information, secured the note he exhibited and covered six hundred and forty acres of land in Stonewall county, Texas. Appellant declared to her that the deed of trust was genuine.
On these representations Mrs. Wheaton traded her goods for the note appellant had, relying upon the representations made by appellant. The trade was consummated in Watts' office, Watts going out for appellant after Mrs. Wheaton arrived. Appellant appeared, shortly, bringing the papers mentioned with him. Mrs. Wheaton gave a check to Watts for twenty-five dollars for commission, which was for the use of both Watts and appellant. On this occasion the same persons were present as at Mrs. Wheaton's home, and also Messrs. Murphy and Roarer. Mrs. Wheaton again asked if the abstract was all right, and was assured that is was.
As to the representations made by appellant, Mrs. Wheaton was corroborated by her daughter.
After the trade was made Mrs. Wheaton sent the abstract obtained from Steele to the firm of Perry & Johnson, Aspermont, Texas, by whom the abstract purported to be made. The letter to that firm was registered, but never delivered to the addressees, being returned by the postal authorities to Mrs. Wheaton. Investigation also developed that there was no such man as W. J. Cole, the pretended maker of the note traded to Mrs. Wheaton. It appeared that one Hebler or Hibler was in the habit of signing up papers for appellant under the name "W. J. Cole." Prior to trading the note to Mrs. Wheaton, appellant told one Miller that the "abstract was no good," and "wouldn't stand" if submitted to an attorney. It had been "turned down" by an examiner, prior to the trade with Mrs. Wheaton, so appellant admitted to Miller.
Appellant traded some of the land, covered by the same abstract exhibited to Mrs. Wheaton, to one Wilderboor, and attempted at the same time to trade more of the alleged Cole's Texas land. Appellant had attempted to procure one Dickinson to sign a "bogus note" and take a deed of trust made out in his name, but Dickinson refused. Appellant also prepared "bogus" abstracts, other than that used in the Wheaton transaction.
The abstract used in the Wilderboor trade was the one from which the abstract used in the trade with Mrs. Wheaton was copied. The former was represented by appellant, to Wilderboor's agent, to be "all right." An investigation disclosed that "there was no title to the property and no such land." Wilderboor executed his deed to his building, which he traded for the Texas land, in blank. Appellant traded the building to one Hargreave, and Hargreave's name was inserted as grantee, appellant informing Hargreave that he, appellant, "got the building from Wilderboor."
Appellant, it appeared, had had the abstract, used in the trade with Mrs. Wheaton, typewritten from a pencil copy which he furnished the stenographer for that purpose.
In his own behalf, defendant testified that he had not met the man Cole until after the date of the trade with Mrs. Wheaton; denied having been at Mrs. Wheaton's house with Watts and Burgess; said that he never saw Mrs. Wheaton until the day he met her in...
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