State v. Austin
| Decision Date | 31 December 1927 |
| Docket Number | 28220 |
| Parties | The State v. Benjamin F. Austin, Appellant |
| Court | Missouri Supreme Court |
Appeal from Circuit Court of City of St. Louis; Hon. Anthony F Ittner, Judge.
Reversed and remanded.
Hiram N. Moore and Charles W. Graves for appellant.
(1) When the court at the first trial set aside the verdict on the grounds that the court had erred in failing to sustain demurrers at the close of the State's case and at the close of the entire case, it to all intents and purposes found the defendant not guilty as charged, and defendant was entitled to his discharge as though the court had directed a verdict of not guilty. In other words the court by its action declared there had been a total failure of proof and that a directed verdict should have been given, and, it being too late to do so, did the only thing left to do in order to correct the error, by sustaining the motion. It therefore follows that the court at the second trial committed error in not sustaining defendant's motion to dismiss and his plea in bar. (2) The court erred in admitting in evidence the chattel mortgage to Vette and in permitting the testimony of Alewell in regard to it and the transactions concerning it. State v. Goetz. 34 Mo. 85; State v. Reavis, 71 Mo. 419; State v. Harris, 73 Mo. 287; State v. Boatright, 182 Mo. 33; State v. Spray, 174 Mo. 569; State v. Harris, 283 Mo. 99; State v Shobe, 268 S.W. 81; State v. Horpon, 247 Mo 657; State v. Smith, 250 Mo. 274; State v. Monroe, 273 Mo. 341. (3) The chattel mortgage to Blase was shown under the evidence to be given for a usurious loan and was therefore void. Keim v. Vette, 167 Mo. 401; Missouri Discount Corp. v. Mitchell, 261 S.W. 743. (4) There was not only a fatal variance between the allegations of the information and the proof in support thereof, but there was a total failure of proof, and the court should have sustained the demurrer to the evidence both at the close of the State's case and at the close of the entire case, and have directed a verdict. State v. Young, 237 Mo. 170; State v. Dewitt, 191 Mo. 51; State v. Plant, 209 Mo. 307.
North T. Gentry, Attorney-General, and J. D. Purteet, Special Assistant Attorney-General, for respondent.
(1) The information is sufficient both as to form and substance. It charges the constitutive and essential elements of the crime, as set out in the statute. Sec. 3347, R. S. 1919; State v. Wilson, 66 Mo.App. 540; State v. McConnell, 240 Mo. 269. (2) New trial granted on defendant's motion for a new trial does not place him twice in jeopardy. Trial courts are authorized by statute to grant new trials on application of defendant. Sec. 4077, R. S. 1919. Defendant, by filing his motion for new trial, waived his right to plead his former conviction as a bar to another trial on the same or a new information. When his motion for new trial was sustained he stood in the position of never having been tried on the charge contained in the information. (3) The trial court properly admitted in evidence the chattel mortgage executed by defendant to one Blase, also the chattel mortgage in favor of the estate of Vette. The introduction of the previous mortgage was the best evidence to show this element of the crime. Sec. 3347, R. S. 1919. (4) There is no variance between the allegations of the information and the evidence. The information alleges that the property covered by the second mortgage was a "Seeburg orchestration organ." State's evidence shows that the aforesaid musical instrument was known either as a "Seeburg orchestration piano" or a "Seeburg orchestration organ." Hence, the variance, if any, was insufficient to illegally prejudice defendant's rights.
The Circuit Attorney of the City of St. Louis filed in the circuit court a verified information based on Section 3347, Revised Statutes 1919, charging defendant with executing, with intent to defraud, to one Williams, in consideration of the debt mentioned therein, a chattel mortgage on a Seeburg orchestration organ of the value of six hundred dollars, without reciting therein that he had previously given to one Blase, in consideration of the debt mentioned therein, a chattel mortgage on the organ described, which was then and there outstanding and in full force. The jury returned a verdict fixing the punishment at two years in the penitentiary, defendant appealing from the judgment entered thereon.
The facts in behalf of the prosecution develop that defendant operated a moving picture house at 4262 West Finney Avenue in the city of St. Louis. Defendant and the prosecuting witness, Reaf F. Williams, both negroes, were social acquaintances of a few years' standing. Two years or more previous to the offense charged Williams loaned defendant three hundred dollars on an unsecured note. Williams, desiring payment, importuned defendant to that end. Defendant told Williams that he was not able to pay him, and thereupon Williams came in contact with one Kessler, who owned the building in which the moving picture show operated. Having been told by defendant that he owed about twenty-five hundred dollars, Williams suggested that he had some money he would finance defendant provided he gave him a chattel mortgage on his effects. Thereupon Williams consulted his attorney, who advised him to refuse to make the loan, but later, upon being informed that Kessler would endorse the notes, he consented to the transaction. Thereupon defendant executed to Williams a chattel mortgage dated March 2, 1923, covering the following described property: One No. 1582 Powers Motion Picture Machine; one No. 3950 Powers Motion Picture Machine; one No. 64323 Seeburg Piano; four 16-inch Emerson oscillating wall electric fans; one IXL 24-inch exhaust fan; one Belco 48-inch exhaust fan; 487 iron frame, veneer back and seat, opera chairs; one mercury are rectifier; subject to a first chattel mortgage of record in favor of H. Kessler. Secured by the mortgage were eighteen $ 100-notes of defendant payable monthly, the consideration of all of which was made up of a payment to defendant of $ 1350 in cash, the $ 300 previously borrowed and $ 150 paid to Williams's attorney for drawing the chattel mortgage. This mortgage was recorded. The notes bore interest at the rate of eight per cent per annum until paid.
The information charges that defendant with intent to defraud executed the mortgage to Williams on the property described, having previously executed a mortgage to Blase dated June 30, 1922, for six hundred dollars. The mortgage to Blase covered nothing more than one Seeburg orchestration organ now located in the Pendleton Theatre, 4262 West Finney Avenue, together with the leasehold on said Pendleton Theatre and the option to renew the same. The mortgage to Blase secured a promissory note of six hundred dollars payable in twelve installments of fifty dollars each, due on the thirtieth day of each month thereafter with interest at the rate of per cent per annum from maturity.
Prosecuting witness Williams for the State first testified that the instrument mortgaged to him was a piano. He modified his testimony, however, by stating that it was one organ and piano operated by electricity with a trap drum and other instruments attached. Williams later testified that the instrument was an organ, a combination organ and piano, and that it could be operated by the same operator. He further testified in answer to the question, "How many pianos or organs are out there in that picture show?" that there was one organ and piano combined. It seems that when Williams turned over a cashier's check to defendant, Kessler, who was present, took the check and appropriated the proceeds. The value of the organ was shown to be five hundred dollars.
Witness Alewell for the State testified that the instrument was a piano. The court permitted the State to show that four or five years prior thereto defendant mortgaged one J. P. Seeburg Orchestrion, No. 64323, to one Vette, and that this mortgage was foreclosed by his representative Alewell after defendant gave the chattel mortgage to Williams.
The evidence for the defense tended to show that defendant owned and had in his moving picture house two Seeburg musical instruments, one of which was a combination instrument and the other a straight electric piano. Such other facts as are pertinent will later appear.
I. It is the contention of defendant that a demurrer to the evidence should have been sustained, because there was a fatal variance between the...
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