State v. Barnes

• Decision Date: 10 May 1974
• Docket Number: No. 9486,9486
• Citation: 517 S.W.2d 155
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Hilmer E. BARNES, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 155

517 S.W.2d 155

STATE of Missouri, Plaintiff-Respondent, v. Hilmer E. BARNES, Defendant-Appellant.

No. 9486.

Missouri Court of Appeals, Springfield District.

May 10, 1974.

Rehearing Denied Dec. 16, 1974.

Morton K. Lange, Cuba, for defendant-appellant.

John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for plaintiff-respondent.

PAUL E. CARVER, Special Judge.

Hilmer E. Barnes was found guilty by a jury in the Circuit Court of Crawford County of violating § 561.450, RSMo 1969, V.A.M.S., the 'Confidence Game' statute. A sentence was assessed against him by the jury for a period of seven years confinement in the penitentiary. From the judgment and sentence he has appealed to this court.

Elizabeth Peterson, age 55, a widow and school teacher, lived alone with her 18-year-old son, Clarence Peterson, about eight miles east of Steelville, Missouri. Her home was in the country and was somewhat off of the public road.

In April of 1970, through a friendship club, she received a letter from Hilmer Barnes. She answered his letter and they corresponded for about three months or until approximately June 1970. There was no other contact or correspondence then until May 1971, except for a phone call she placed to his house during the course of a trip to Iowa. He was not there and she left word to inform him that she called and that she was in Chariton, Iowa, attending a funeral.

On May 6, 1971, about nine o'clock in the evening she received a phone call at her home from Barnes. He said 'he had been down this way fishing and would like to come out and see her.' She agreed and gave him directions, and about twenty minutes later he came to her house in a car. He came into the house and about 11:30 P.M. he told her his lawyer, John Longall, was in the car. Longall was invited into the house and Barnes introduced him as John Longall, his lawyer, and said that they had been in St. Louis all day working on some papers, that is, getting papers drawn up to buy a motel. A friendly meeting was held and refreshments were served by Mrs. Peterson. Longall drank some coffee and then went into the living room and lay down on the couch. Mrs. Peterson and Barnes were in the kitchen and they stayed there until about one o'clock or so in the morning talking about many things, that is, just 'run of talk' and about what she thought would make a good husband. Sometime before midnight he wanted to know if she would marry him, and somewhere along the line she accepted his proposal. They agreed to get married in June in order for her to finish school as a teacher, and plans were made for a little engagement before they married and Barnes said 'he would buy a ring for her.'

On Friday morning he told her they were going to St. Louis to fix the final papers for the motel and he said 'he wanted to put her name on the final papers so they wouldn't have to redo them after the final deal went through.' Mrs. Peterson and her son went to school before Barnes and Longall left. When she returned, Barnes and Longall were in the living room. Barnes said 'they had been to St. Louis and it took about fifteen minutes to meet with some kind of board that approves the motel business and that they came back.' He also said 'they had looked at some rings and furniture and he thought she should sell the old furniture and get new furniture; also, that the motel belonged to his uncle, whose wife had cancer, and was selling the motel.' He professed knowledge of the motel business and said he had operated a motel before in St. Louis, and seemed to be well versed in the operation of motels.

On May 8th Barnes approached Mrs. Peterson and asked her where they could talk secretly. They went upstairs and he asked her if she could get her hands on some ready cash; that he needed $6,000 to pay Longall for attorney's fees for drawing up the papers on the motel; that Longall was in a hurry and wanted to go home. He also said he wanted to get married and buy a house; also that he didn't want Longall to know he was borrowing money to pay him. She told Barnes she had $2,000 in the Steelville Bank and some savings in the Central Federal and Loan at the town of Rolla. He said 'that would be all right' and he promised to pay her back with interest in fifteen days.

On the same morning they went to Steelville and drew $2,000 from the bank, which she turned over to him later. They then went to Rolla in Phelps County, where she withdrew $4,000 from her savings account and obtained a cashier's check, which was also turned over to him. The check cleared, bearing the endorsement of Hilmer E. Barnes and Sam Armstrong. Mrs. Peterson and Barnes planned to take Clarence to her brother's in Hillsboro, after going to Rolla, and from Hillsboro to go to the City of St. Louis. They left Clarence at Hillsboro; but after they left her brothers' house, Barnes made a phone call to her house and out of Mrs. Peterson's immediate presence. He said 'Longall couldn't get his car started and that they had to go back and see about him.' Mrs. Peterson thought something was not right and told him that she would fight if she was 'taken', but afterwards she apologized for mistrusting him. When they got back to the house, Longall was gone, without leaving a note or anything. Mrs. Peterson continued to wonder where he had gone but Barnes said 'forget it.' They went into the living room and Barnes asked about buses. Mrs. Peterson found out that one left Cuba at 9:30 P.M. and she drove Barnes to Cuba to catch the bus to St. Louis. They waited in the car until the bus came, and while there, Barnes informed Mrs. Peterson that he would be back Friday. Before he left that night she thought that she had been 'taken'. Inquiry was made of Barnes by Mrs. Peterson about the name of the motel and the address. He said the name was Skylark Motel and the address was 4600 or 6400 Grand Avenue. Mrs. Peterson testified later that she had written the address down and it was 4600 North Grand. Mrs. Peterson said 'she gave him the money in reliance on his promise to pay her back.'

On Friday, May 14th, Barnes returned; and when Mrs. Peterson and Clarence returned home from school, Barnes was there but was with another man whom he introduced as Vel Baker. They stayed all night and until after breakfast the next day. That night Barnes took Mrs. Peterson out to dinner alone. After dinner they came back and watched TV until bedtime. The next morning after breakfast when Mrs. Peterson and Barnes were alone in the living room, she requested a statement from Barnes that she had given him the money. He asked her to make up a statement any way she wanted it and that he would sign it. She wrote up the statement in her own handwriting as follows:

'I promise to pay back $6,000.00 that I borrowed on May 8, 1971, with interest within 6 or 7 days to Elizabeth Peterson. The money was (is) drawn from the Community Bank in Steelville, and Central Savings and Loan in Rolla, Mo.'

Barnes signed this writing for her on May 15, 1971, and he and Baker left on the same day.

While they were at Mrs. Peterson's, Barnes told her that Longall's car had been broken into while it was in front of her house and that his briefcase had been stolen. Mrs. Peterson did not ask him any questions about the motel although she said she knew at that time there was no Skylark Motel in St. Louis; but she didn't say a word to him about it or ask him for any explanation, but hoped he would return her money. She didn't call the sheriff, although Barnes was right there. She was still giving him the benefit of the doubt that he would pay her back.

On May 19th or 20th she received a letter dated May 18, 1971, from Barnes in which he addressed her as 'My Darling Wife' and signed it 'your irish Daddy Bing.' There was nothing in the letter which indicated that he had changed his mind about marrying her, and he never told her he wasn't going to marry her. He also never told her he was or was not going to pay her back the money she loaned him. The record shows the defendant did not pay the money due Mrs. Peterson.

On May 21, 1971, and before the money was due, she swore out a complaint. That night Mrs. Peterson wrote a friendly letter at the request of the Sheriff of Crawford County and signed it 'Love, Elizabeth.' Mrs. Peterson had been to the sheriff and told him her story on Wednesday and she wrote the letter for the purpose of misleading him (Barnes) and particularly because she didn't want him to leave the country to avoid prosecution, and also to give him the benefit of the doubt. Mrs. Peterson said 'she was trying to trick him a little bit because she suspected that he had already tricked her.'

On June 5, 1971, after 'Irish Daddy Bing' had been arrested, he wrote Mrs. Peterson a letter. In this letter he was indignant that she had had him arrested on 'a fraudulent charge that never even took place.' He also threatened to expose her intimate relations with him; that the relations were of such a nature that her career as a school teacher would be ruined. That she and her son would go swimming in 'the bottom of a public sewer before the public . . . I will still meet my agreed business oblagation as we agreed only if free to do so as we agreed and only when you with drow your warrant un justified, if, I have to defend myself through the courts of both Iowa and Mo, that not legal and will file a Lawsuite against you and concerned and oblagations Lawyers are ended your refusal to have this Un justified warrant removed free to complete our agreed Business will tell me your motive is my blood a hate motive and, I will be force to contact a St. Louis attorney, Advice me in the near future, all love irish Bing . . .'

Mrs. Peterson admitted she had some affection for Barnes and that she was sincere about marrying him and thought he was about her. She denied any intimate relations with the defendant. Mrs. Peterson also...