44 S.W. 722 (Mo. 1898), The State v. Wilson

Citation:44 S.W. 722, 143 Mo. 334
Opinion Judge:Gantt, P. J.
Party Name:The State v. Wilson, Appellant
Attorney:Stauber & Crandall, Henry Wollman, Alexander New and Isaac B. Kimbrell for appellant. Edward C. Crow, Attorney-General, Sam B. Jeffries, Assistant Attorney-General, and Marcy K. Brown, for the State.
Judge Panel:Gantt, P. J. Sherwood and Burgess, JJ., concur.
Case Date:March 15, 1898
Court:Supreme Court of Missouri
 
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Page 722

44 S.W. 722 (Mo. 1898)

143 Mo. 334

The State

v.

Wilson, Appellant

Supreme Court of Missouri, Second Division

March 15, 1898

Appeal from Jackson Circuit Court. -- Hon. John W. Wofford, Judge.

Affirmed.

Stauber & Crandall, Henry Wollman, Alexander New and Isaac B. Kimbrell for appellant.

(1) The indictment is defective: First. It does not aver that the "contract for the purchase" was made designedly and with intent to cheat and defraud. Second. It does not aver that defendants designedly and with intent to cheat and defraud agreed to pay cash on delivery. Third. It does not aver that defendants designedly and with intent to cheat and defraud obtained possession of the goods. Fourth. It utterly fails to charge that Stanton B. Willock then and there delivered the goods to the defendants in pursuance of said contract and because he believed in and relied upon defendant's agreement to pay cash upon delivery. Fifth. It does not aver that defendants designedly and with intent to cheat and defraud, transferred, secreted and disposed of the goods. Sixth. It does not aver that defendants unlawfully, feloniously and designedly, and with intent to cheat and defraud, failed to pay the said S. B. Willock. State v. Daggs, 106 Mo. 160; State v. Crooker, 95 Mo. 394; State v. Hayward, 83 Mo. 310; State v. Emerich, 87 Mo. 115. (2) Every felonious act must be charged to have been feloniously done. It should have been positively averred that the contract of purchase, agreement to pay cash on delivery, obtaining possession, selling, transferring, and secreting, failing to pay and failing to satisfy, were each committed fraudulently, designedly, feloniously, and with intent to defraud. In statutory offenses there must be an evil intent, though the statute is silent on the subject. Therefore, it was necessary to allege that "the failing to satisfy" was done designedly, feloniously, and with intent to cheat and defraud. State v. Reilly, 4 Mo.App. 397; State v. Davis, 29 Mo. 391; State v. Herrell, 97 Mo. 105; State v. Ross, 25 Mo. 426; State v. Feaster, 25 Mo. 324; State v. Emerich, 87 Mo. 116; State v. Evers, 49 Mo. 543; State v. Vorback, 66 Mo. 168; State v. Terry, 109 Mo. 601; State v. Saunders, 63 Mo. 482; State v. Bonnell, 46 Mo. 395. (3) The indictment is duplicitous. Two offenses which are essentially repugnant to and inconsistent with each other can not be joined in the same indictment, even in different counts. State v. Porter, 26 Mo. 206; State v. Rector, 11 Mo. 28; State v. Flint, 62 Mo. 394; State v. Bridges, 24 Mo. 253; 1 Bishop's Crim. Plead. and Prac., chap. 31; State v. Dennis, 80 Mo. 595; State v. Fitzsimons, 30 Mo. 237; 1 Archbold, Com. Plead. and Prac., pp. 95, 96; 1 Chitty Crim. Law, pp. 231 to 235; Wharton, Crim. Law, secs. 2087, 2116, 2118, 2121, 2122 and 204; Bishop on Stat. Crimes, 418, 421, 422; R. S. 1889, secs. 4103-4104; Com. v. Strain, 10 Met. 521. (4) The court erred in overruling defendant's objections to this question asked S. B. Willock, the prosecuting witness: "Q. What were the terms that you sold these goods? Objected to; objection overruled. A. It was cash; it was spot cash at my door. Q. To be paid on delivery? A. Yes, sir." The question calls for a mere conclusion. The answer shows furthermore that the witness had in mind the conversation between himself and defendant about the $ 1,100 car of eggs sold to the other parties. We say this for the purpose of showing the injury to defendant's cause of allowing the prosecuting witness to state a mere conclusion drawn from both negotiations between himself and defendant. (5) The court erred in admitting, over defendants' objections, the testimony of witnesses Brady, Hilt, Dunkeson, Phillips, Townsend, Bandy, Hamblin and Fudge. Their testimony did not prove that defendant bought goods from them, agreeing to pay cash upon delivery, but it did show that defendant owed them for goods and had not paid them, and in the light of the fact that the court refused to allow defendant to show his inability to pay, and the reason of his inability to pay, together with his good faith and honest intention in making purchases from them, the testimony was calculated to prejudice the jury against defendant. State v. Reilly, 4 Mo.App. 395; St. Louis Foundry v. Union Co., 3 Mo.App. 142. (6) The court erred in admitting any testimony as to a contract between Emmet H. Wilson and Willock. The indictment charged a joint contract made by Emmet H. Wilson and E. E. Wilson. "Where the petition declares on a joint contract of the defendants, it is incompetent to admit a contract which is only several." Davis & Rankin v. Mayesville Creamery, 63 Mo.App. 477; Gamble v. Kellam, 12 So. Rep. (Ala.) 82; Bank v. Campbell, 34 Mo.App. 45. (7) The court committed error in excluding the evidence, asked the defendant, a witness in his own behalf. The testimony went to the very essence of the crime charged -- the criminal intent. The testimony further showed that the bank received no orders not to honor defendant's check until the week following this transaction. It was strong evidence of defendant's good faith...

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