State v. Anderson

• Decision Date: 31 January 1905
• Citation: 84 S.W. 946,186 Mo. 25
• Parties: STATE v. ANDERSON.
• Court: Missouri Supreme Court

84 S.W. 946

186 Mo. 25

STATE v. ANDERSON.

Supreme Court of Missouri, Division No. 2.

January 31, 1905.

CRIMINAL LAW — LARCENY — FALSE PRETENSES — FORMER ACQUITTAL — BAR — ELEMENTS OF OFFENSES — PARTING OF TITLE — INTENT — EVIDENCE.

1. The offenses of larceny and obtaining money under false pretenses, defined by Rev. St. 1899, §§ 1898, 1927, respectively, containing essentially different elements, an acquittal under an information for larceny is no bar to a subsequent information for obtaining money under false pretenses, based on the same facts.

2. Prosecutor met defendant through a newspaper advertisement, and defendant offered to sell him a half interest in the rooming-house department of a brokerage company for $200, and represented that he (defendant) needed an assistant, and that the business netted profits of between $200 and $300 a month. Prosecutor desired a salary, but thereafter paid defendant $50 to be kept by him for 30 days; defendant agreeing to return the same to prosecutor at the expiration of such time if he was dissatisfied, which defendant failed to do. Held, that since the ownership of the money so deposited remained in prosecutor, and there was no intent on his part to deliver possession thereof to defendant, except temporarily, the latter's offense, if any committed, was larceny, and not obtaining money by false pretenses.

Appeal from St. Louis Circuit Court; Daniel G. Taylor, Judge.

J. P. Anderson was convicted of obtaining money by false pretenses, and he appeals. Reversed.

At the June term, 1903, of the circuit court of the city of St. Louis, the defendant in this cause was indicted for obtaining money from Patrick J. Keane under false pretenses. At the December term, 1903, of said court, with the consent of the court, a nolle prosequi was entered in said cause, and the same was by the circuit attorney dismissed; and at the same term of court, for the commission of the same act, the circuit attorney filed an information against the defendant charging him with grand larceny. To this information, defendant entered his plea of not guilty. Upon the trial of the issue joined upon the information for larceny, defendant was acquitted and discharged. Subsequently, at the February term, 1904, of said court, for the commission of the same act, the circuit attorney filed his information charging defendant with obtaining money from Patrick J. Keane under false pretenses. To this information the defendant filed his plea in bar, setting up a former trial and acquittal, as follows: "Now, this day comes the defendant in the above-entitled cause, and, for a special plea in bar, states to the court that at the June term, 1903, of this court, the grand jury of this court for said term, duly summoned, impaneled, charged, and sworn to inquire and true presentment make in and for the city of St. Louis, state of Missouri, returned into this court an indictment against this defendant, in and under the name of James P. Anderson, with obtaining money under false pretenses from one Patrick J. Keane, alleging said false pretenses as follows, to wit: That on the 10th day of March, 1903, this defendant, James P. Anderson, did falsely and fraudulently and knowingly, with intent to cheat and defraud said Patrick J. Keane, pretend, and represent to the said Patrick J. Keane that the said James P. Anderson was then and there the owner of the rooming-house department of the Atlas Brokerage Company, located at No. 612 Chestnut street, in the city of St. Louis and state of Missouri, and that said rooming-house department was doing a profitable business, and that said department was then and there paying from two hundred to three hundred dollars per month net profits, and that he would sell to said Patrick J. Keane a one-half interest in said rooming-house department for the sum of two hundred dollars, and that the said Patrick J. Keane, relying upon the false and fraudulent statements knowingly made as aforesaid, and believing them to be true, was induced to part with and did part with the sum of two hundred dollars in good and lawful money of the United States, and thereafter, at the December term, 1903, of this court, said cause coming on for trial upon the charge in said indictment made, and the defendant's plea of not guilty thereto, the circuit attorney of the city of St. Louis, prosecuting on behalf of the state in this court, asked and obtained leave of this court to enter a nolle prosequi in said case, and said case was thereupon by this court, on motion of the state, so made by the said circuit attorney on behalf of the state, dismissed, and said case ordered stricken from the docket, and thereupon, on the same day and at the same time, said circuit attorney filed an information in the said court against this defendant, James P. Anderson, charging him with the crime of grand larceny, in feloniously taking, stealing, and carrying away the aforesaid sum of two hundred dollars, heretofore mentioned, being the money of said Patrick J. Keane. Thereafter, said last-mentioned cause coming on for trial on the 20th day of January, 1904, at the said December term, 1903, of this court, both parties announcing themselves ready for trial, a jury of twelve good and lawful men was duly impaneled and sworn, and charged with the deliverance of defendant, who, after hearing the evidence adduced on the part of the state, returned a verdict acquitting defendant of said charge; and this defendant, James P. Anderson, mentioned in said indictment and former information, and so informed against in this cause, is one and the same person, and not another and different person, and that the transactions, acts, and dealings between this defendant and the said Patrick J. Keane, as set out in said indictment and said former information, and in the information in this case, are one and the same, and not another and different acts, dealings, and transactions, and all relate to and are the same, and are identical in every particular and respect. Wherefore he claims that he has been put in jeopardy for the said offense in the said indictment and former information with which he stands charged in this information in this case, contrary to article 11, § 23, of the Constitution of Missouri. Wherefore he prays judgment, and that he be dismissed by the court in present information specified." To this plea in bar the following demurrer was filed: "Comes now Joseph W. Folk, circuit attorney within and for the city of St. Louis, and, having read the plea in bar herein filed by the defendant, doth demur to said pleading in the nature of a plea in bar, and, as ground of demurrer, states: (1) States that the facts set forth in said pleading in the nature of a plea in bar fails to set forth facts sufficient to constitute a bar to a prosecution upon the information in this cause. (2) That said pleading avers that the former trial pleaded was had upon an entirely different charge from the one laid down in the information herein." The court sustained the demurrer to the plea in bar, and defendant was put upon trial for the offense charged in the information filed at the February term, 1904, and was convicted of said offense, and his punishment fixed at two years in the penitentiary. From this judgment of conviction defendant, in due time and form, prosecuted his appeal.

"The testimony on the part of the state tends to show that on the 10th day of March, 1903, Patrick J. Keane (clerk with the Laclede Gas Company, and formerly a clerk and waiter at the St. Louis Club), the prosecuting witness, called at 612 Chestnut street, St. Louis, then the office of the Atlas Brokerage Company, in response to a newspaper advertisement and met there one W. A. Buck, the manager of the Atlas Brokerage Company, by whom he was referred to the defendant, with the remark that said Keane was a young man with the best of references, and to do what he could for him, and thereupon they retired together to the private office, where they had the following conversation alone together, according to the testimony of Keane: That defendant asked him if he knew anything about brokerage business, and Keane stated that he did not. That defendant told him he owned the rooming-house department of the Atlas Brokerage Company; that he wanted an assistant, and that, if Keane would give him $200, he would give him one-half of said business; that the profits therefrom amounted to $200 to $300 per month. That said Keane answered that he would rather have a salary, and was told by defendant that he was foolish, whereupon Keane told defendant that he had but $200, and could not afford to lose that; that defendant then told him to deposit $50 with him for 30 days, and that, if he (Keane) was satisfied at the end of 30 days, to pay the remainder, but, if he was dissatisfied, defendant would give him back his money, $50. Keane told defendant that he saw an advertisement in the paper. Keane gave defendant $50, and was given by defendant a receipt for it, and that was all that occurred between them on that day, but that the defendant told Keane to come back the following morning at 9 o'clock to go to work, but that he did not see the defendant when he returned. That he stayed in the office until April 3, 1903, but did not again see defendant, but did not receive any profits from his supposed interest in the rooming-house business there, from Anderson or anybody else, and never received the $50 back. That he never asked defendant for the return of the $50 — never had seen him. Asked Buck where Anderson was on the second day there. That he entered into another deal then, on the second day. That Anderson explained the business, telling him how commissions were earned and business procured. That at the time he entered into the business he did not know what defendant had been making. That he gave the receipt received from Anderson for the $50 to Buck the next day. That he believed defendant's...