State v. Bithorn
| Decision Date | 22 December 1925 |
| Docket Number | 26619 |
| Citation | 278 S.W. 685 |
| Parties | STATE v. BITHORN |
| Court | Missouri Supreme Court |
T. S Mosby, of Jefferson City, for appellant.
Robert W. Otto, Atty. Gen., and Wm. L. Vandeventer, Asst. Atty Gen., for the State.
The appellant, November 19, 1924, in the circuit court of Cole county, was found guilty of obtaining money by false pretenses, and his punishment assessed at two years in the state penitentiary. The information charged that the defendant, April 4, 1921, designedly, etc., and with intent to cheat and defraud the Farmers' & Merchants' Bank of Russellville, in Cole county, falsely represented to Ben R. Stevens, president of that bank, and to T. H. Weiler cashier of that bank, that he (Bithorn) was the sole and exclusive owner of a Reo roadster automobile, and that the said automobile was free and clear of any and all incumbrances; that the said officers of the bank, believing said false statements to be true, were induced by reason thereof to take a chattel mortgage executed by the said Bithorn securing the sum of $ 1,200; whereas, in truth and in fact he was not the sole owner of the automobile, and it was not free and clear of incumbrance; that there was a valid and subsisting mortgage against it at the time. The information then formally charged that, by reason of the false representations aforesaid, he obtained from the bank the sum of $ 1,200, which was deposited to his credit on the security of said mortgage and note, and was afterwards checked out by him and entirely lost to the bank.
The state's evidence tended to support the charge in the information to show that defendant orally made the misrepresentations alleged. The mortgage itself contained a statement that the property covered was free and clear of all incumbrances. The defendant denied any oral misrepresentations and said that he did not read the mortgage, and did not know that it contained a recital that he was the sole owner and that it was free and clear of all incumbrance. On this evidence the defendant was found guilty, as stated, and appealed.
I. At the November term, 1924, the defendant filed a motion to be discharged from custody on the ground that more than four terms of court had passed since his case was triable, through no fault of his, and the state had not brought him to trial.
A complaint, charging defendant with the crime, was first filed before a justice of the peace, and on May 26, 1923, the defendant waived a preliminary hearing, and the justice's transcript was filed in the circuit court May 29, 1923, so that at the time the motion to discharge was filed four terms of court had passed since the transcript of the justice was filed in the circuit court; the June term, 1923, the November term, 1923, March term, 1924, and June term, 1924. That, under sections 4041 and 4043, if applied to the situation, would entitle the defendant to his discharge. The trial court overruled the motion on the ground that defendant had asked for a continuance at each of those terms, and that Sam S. Haley, prosecuting attorney of Cole county, had always been ready for trial.
Sections 4041 and 4043 provide that defendant in such case is entitled to his discharge 'unless the delay happened on his application, or be occasioned by the want of time to try such cause' at such fourth term.
We hardly understand how the prosecutor could say that he 'always had been ready for trial,' when he filed no information until the 19th day of November, 1924. He certainly was not ready for trial before a charge was filed against the defendant. No record entry appears here to justify the conclusion that he was ready, but this point is disposed of by the terms of section 4041 and section 4043, which provide that a...
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