State v. Benson

• Decision Date: 28 March 1892
• Citation: 19 S.W. 213,110 Mo. 18
• Parties: STATE v. BENSON.
• Court: Missouri Supreme Court

19 S.W. 213

110 Mo. 18

STATE v. BENSON.

Supreme Court of Missouri, Division No. 2.

March 28, 1892.

FALSE PRETENSES — EVIDENCE — INDICTMENT.

1. In a trial for obtaining hay under false pretenses, it appeared that defendant falsely told the seller of the hay that he owned several barns, and was in partnership with a certain person, and that he paid for the hay by his individual check, which was refused by the bank. The seller swore that he sold the hay on the faith of the said statements; but the evidence showed that the bargain for its sale was not made till several days after the statements were made; that the seller expected to be paid upon delivery of the hay; and that the defendant afterwards paid the seller all the money he had, and turned all his property over to his creditors. Held, that the evidence was not sufficient to sustain a conviction.

2. An indictment which charges the accused with feloniously obtaining property "by means of and by use of cheat, fraud, trick, deception, false and fraudulent representation and statement, and false pretense," contrary to Rev. St. 1889, § 3826, is not sufficiently explicit as to the means used to inform the accused of the nature of the accusation against him, as required by Const. art. 2, § 22. State v. Terry, (Mo. Sup.) 19 S. W. Rep. 206, followed.

Appeal from circuit court, Barton county; D. P. STRATTON, Judge.

Indictment of F. E. Benson for obtaining property under false pretenses. Defendant was convicted, and appeals. Reversed.

Walser, Fuller & Essex, for appellant. The Attorney General, for the State.

THOMAS, J.

The defendant was found guilty of obtaining property under false pretenses, and sentenced therefor to imprisonment in the penitentiary for two years, by the circuit court of Barton county, in February, 1890, and he prosecutes this appeal. We think the court committed error in overruling defendant's demurrer to the evidence, which he interposed no less than three times during the trial. We are loth to interfere with the finding of a jury in a case of this character, but, when we have an abiding conviction that the accused has committed no crime, we feel it to be our imperative duty to say so. Humanity revolts at the punishment of the innocent. It has been justly said that it is better that nine and ninety guilty men escape than that one innocent man should suffer. A careful and attentive study of the facts disclosed by this record convinces us that defendant committed no crime. This case sharply illustrates the statement of Robert Burns, that —

                     Man's inhumanity to man
                     Makes countless thousands mourn
                

Defendant was torn from his wife and child, incarcerated in jail, and finally sentenced to imprisonment in the penitentiary for no higher crime, in our opinion, than being poor, failing in business, and being unable to pay his debts. About the 1st of August, 1889, defendant went to Cyrus Dickson's, in Barton county, to buy hay. He was a stranger to Dickson, and, being introduced to him as a hay dealer, the latter asked him where he was doing business, and the evidence tends to show that he replied that "he was living in Girard, and owned a barn there, and one at Litchfield, and one at Medway, and one at Pittsburgh, and was a partner of King's at Arcadia." Defendant denies, however, that he made that statement. He and Dickson went out, and looked at some hay in the field. Dickson asked $7.50 a ton for the hay. Defendant offered $7.25, and, not coming to terms, the purchase was not made. This was on Friday. The next Monday a man by the name of Northington went to Dickson, and told him he had come to buy hay for defendant. They agreed on $7.35 per ton for it, and the purchase was made, the hay, then in stacks, to be baled and put in the cars at Ellsworth by Dickson. The hay was baled and hauled to Ellsworth during the month of August, and shipped by defendant to Goddard and Hall at New Orleans. After the hay was delivered, defendant signed a check, in blank, on the First National Bank of Girard, and gave it to Northington to fill up for the proper amount in payment for it, there being about 49 tons of it. Twenty dollars in cash was paid by Northington, and the check was filled up for $341.10, and delivered to Dickson, but afterwards went to protest. Dickson met defendant on the 6th or 7th of September, and asked him why the check had not been paid, and he replied that he had not received the returns from his hay, and that he had no money. Dickson said it was hard he and his boys should work all summer and not get pay for their hay. Defendant thereupon gave Dickson a check for $125 on the same bank, signed by his wife, which was paid. The balance of the check of $341.10 was never paid.

Dickson testified as follows: "Question. You stated to the jury about the statements of Benson about the barns, and as being in partnership with King. Now, tell the jury whether you relied on those statements as being true, and let him have the hay. State what, if anything, what effect did the conversation have on your mind. A. It had just enough effect on my mind to get my hay. I relied upon him, from the simple fact that he was the partner of Mr. King, being close, — not far away, twelve and one-fifth miles. Stating that he was a partner of King made me trust him more than all the barns. I had frequently heard of Mr. King; had heard of him. I knew of him. Q. State what effect, if anything, Benson's statement had on your mind, — any effect on your delivering the hay at Ellsworth. A. I expected my money. Q. What effect did these statements about the barns and Mr. King have on you? A. It had the effect of causing me to take my hay over there." There was evidence tending to prove that at the time of the purchase of this hay defendant was not engaged in shipping hay from any point except Ellsworth and Barton; that he owned no barns except one owned jointly by him and King at Arcadia, and that he and King were not partners in the hay business. It also appeared that the barn at Arcadia was held by defendant's trustee for the benefit of some of his creditors. The evidence showed that defendant lived at Girard, had a wife and one child, had been engaged in buying and shipping hay for two years, and had owned barns at and shipped hay from Medway, Litchfield, and Pittsburgh.

It will be observed that the question whether Dickson relied on defendant's alleged false statements presents one of the most material issues involved in the case. Dickson says he was deceived by them, and parted with his property because he relied on them. We wish to examine his testimony on this point in the light of the other evidence. Here is a statement of Dickson's mental condition. That mental condition must have existed at the time of the purchase of the hay, and upon the proof or non-proof of its existence at that time the liberty of one citizen and the reputation of one family hang. There is no proof of this except Dickson's statement. Who is Dickson? He is a farmer living in Barton county. He told the defendant he would spend twice as much as the hay was worth to catch him, and would do all he could to send him to the penitentiary, if he did not pay him for the hay, and hired a lawyer to prosecute the case. He was on the grand jury that preferred the bill of indictment against defendant, who was then in jail. Besides that, it clearly appeared in evidence that, in baling, the weather-beaten hay at the top and the moulded hay at the bottom of the stacks was baled and shipped with the good hay, and only two wires put on about half the bales, when there ought to have been three wires. These two facts, i. e., the baling of inferior hay and shipping it with the good, and putting only two wires on the bales, caused a loss to defendant on this lot of hay in the New Orleans market of $250, the hay not netting enough by over $100 to pay the amount due Dickson. In other words, instead of making a profit on the hay, as he expected and had a right to expect to do, he actually lost over $100 on the original cost resulting from Dickson's negligence in baling it. We state these facts to show how much weight Mr. Dickson's testimony is entitled to, when he is permitted to draw on his imagination for influences that operated on his mind at the time of the delivery of the hay. He said he was prosecuting defendant for the public good. We think he prostituted the administration of the law when he remained on the grand jury, and voted to indict the man whom he was prosecuting for a crime alleged to have been perpetrated against him. When the grand jury was impaneled, if he had stated to the court his relation to this case, and asked to be excused from service, he would stand before this court upon a much higher plane than he does now, as an exemplar of moral rectitude and the corrector of the evils of society. It is an ancient and wholesome maxim that no man should be a judge in his own case.

But let us inquire and see if Mr. Dickson was in fact deceived by the statements of defendant that he had barns at several places, and was a partner of Mr. King at Arcadia. He and defendant could not and did not agree on the price of the hay Friday evening. The defendant did not ask for credit. The statements were not made to obtain credit. They were made incidentally in answer to a question where he was doing business. If there is a particle of evidence, or any inference to be drawn from the evidence, that defendant expected Dickson to credit him for the hay on those statements, we have not been able to find it in this record. Defendant was a stranger to Dickson, and so was King, except that Dickson knew King by reputation. It would require a wide...