State v. Wilson

• Decision Date: 01 March 1898
• Citation: 44 S.W. 722,143 Mo. 334
• Parties: STATE v. WILSON.
• Court: Missouri Supreme Court

44 S.W. 722

143 Mo. 334

STATE v. WILSON.

Supreme Court of Missouri, Division No. 2.

March 1, 1898.

FALSE PRETENSES — INDICTMENT — SUFFICIENCY — DUPLICITY — OBJECTIONS — EVIDENCE — CONTEMPORANEOUS ACTS — ADMISSIBILITY.

1. Under Rev. St. 1889, § 3564, providing that every person who, with intent to cheat or defraud another, purchases property to be paid for on delivery, and after obtaining possession disposes of the same before paying the owner, is guilty of a felony, an indictment which charges that "defendant, with felonious intent to cheat and defraud," need not charge that defendant "designedly" obtained possession of the property.

2. The words, "that the defendant did take, steal, and carry away the goods," used in concluding an indictment for fraudulently obtaining property under an agreement to pay cash therefor, is mere surplusage, and does not render the indictment bad for duplicity.

3. It is too late to object to duplicity in an indictment after verdict.

4. In a prosecution for fraudulently obtaining property under an agreement to pay cash therefor, the prosecuting witness may testify that the sale was for cash, although the bill head on which the account was rendered stated that all bills must be paid at a certain time, and defendant claimed that the witness confused the sale with another.

5. Evidence of contemporaneous purchases and failures to pay others is admissible to show a fraudulent purpose, in a prosecution for fraudulently obtaining property under an agreement to pay cash therefor.

6. It is no defense to a prosecution for fraudulently obtaining property, under a promise to pay cash therefor, that others who agreed to furnish defendant the money failed to do so.

7. In a prosecution for fraudulently obtaining property under a promise to pay cash therefor, it is immaterial that defendant intended to tender a check for the property, which he did not tender, and which would have been worthless if tendered and accepted.

Appeal from circuit court, Jackson county; John W. Wofford, Judge.

Emmet H. Wilson was convicted of fraudulently and feloniously obtaining merchandise under an agreement to pay cash on delivery, and disposing of same without paying the owner therefor. He appeals. Affirmed.

Stauber & Crandall, Henry Wollman, Alexander New, and Isaac B. Kimbrell, for appellant. Sam. B. Jeffries, Atty. Gen., and Marcy K. Brown, for the State.

GANTT, J.

This is an appeal from the criminal court of Jackson county from a conviction, under section 3564, Rev. St. 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 third counts before or at the trial, the sufficiency of the second and third counts will not be noticed further. The first count is in these words: "State of Missouri, County of Jackson — ss.: In the Criminal Court of Jackson County At Kansas City — September Term, 1896. 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 (3,000) dozen of eggs, of the value of two hundred and fifty-five ($255) 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 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 said Emmet H. Wilson and E. E. Wilson, after obtaining the possession of the said goods, wares, and merchandise, before described, under the said contract and agreement, fraudulently, unlawfully, and feloniously did then and there sell, transfer, and dispose of the said goods, wares, and merchandise, before described, to certain other persons, whose names are to these grand jurors unknown, at and for a price and sum which is to these grand jurors unknown, before paying or satisfying the said Stanton B. Willock, the owner of said goods, wares, and merchandise, before described, or his agent, clerk, or servant, therefor; and the said Emmet H. Wilson and E. E. Wilson have failed and refused, and still fail and refuse, to pay to the said Stanton B. Willock the purchase price thereof by payment in cash, as agreed upon, or by payment in any other manner whatever, with felonious intent to cheat and defraud the said Stanton B. Willock. And so the grand jurors aforesaid, upon their oath aforesaid, do say that said Emmet H. Wilson and E. E. Wilson, the goods, wares, and merchandise, before described, to wit, the three thousand dozen of eggs, aforesaid, of the value of two hundred and fifty-five dollars, the property of the said Stanton B. Willock, in manner and form aforesaid, then and there fraudulently, unlawfully, and feloniously did steal, take, and carry away, against the peace and dignity of the state." 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 judgment were duly filed and overruled. Defendant appeals. The assignments of error can best be considered in the order of defendant's brief.

1. As the accusation is based upon a statute, its sufficiency must be measured by the statute. The prosecution relies upon section 3564, Rev. St. 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 be 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...