State v. Austin

• Citation: 300 S.W. 1083
• Decision Date: 31 December 1927
• Docket Number: No. 28220.,28220.
• Parties: STATE v. AUSTIN.
• Court: Missouri Supreme Court

300 S.W. 1083

STATE v. AUSTIN.

No. 28220.

Supreme Court of Missouri, Division No. 2.

December 31, 1927.

Appeal from St. Louis Circuit Court; Anthony F. Ittner, Judge.

Benjamin F. Austin was convicted under Rev. St. 1919, § 3347, of executing a chattel mortgage without reciting existence of another outstanding chattel mortgage on the same property, with intent to defraud, and he appeals. Reversed and remanded.

Hiram N. Moore and Charles W. Graves, both of St. Louis, for appellant.

North T. Gentry, Atty. Gen., and J. D. Purteet, Sp. Asst. Atty. Gen., for the State.

DAVIS, C.

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 $600, 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 $300 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 $2,500, Williams suggested that, as 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 indorse 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 arc 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 $1,350 in cash, the $300 previously borrowed, and $150 paid to Williams' attorney for drawing the chattel mortgage. This mortgage was recorded. The notes bore interest at the rate of 8 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 $600. The mortgage to Blase covered nothing more than one Seeburg orchestration organ now located in the Pendleton Theater, 4262 West Finney avenue, together with the leasehold on mid Pendleton Theater and the option to renew the same. The mortgage to Blase secured a promissory note of $600, payable in twelve installments of $50 each, due on the 30th 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 $500.

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.

It is the contention of defendant that a demurrer to the evidence should have been sustained, because there was a fatal variance between the allegations of the information and the proof in support thereof, resulting in a total failure of proof. The information charges that defendant mortgaged to Blase, and later to the prosecuting witness Williams, a certain Seeburg orchestration organ. The chattel mortgage to Blase, introduced in evidence by the state, covers one Seeburd orchestration organ, while the mortgage to Williams covers one No. 64323 Seeburg piano. According to the parol testimony of Williams, the instrument mortgaged to him was neither an organ nor a piano, but a combination of both. It may then be readily seen that the proof that defendant conveyed by mortgage...