State v. Block

• Decision Date: 24 June 1933
• Docket Number: 32736
• Citation: 62 S.W.2d 428,333 Mo. 127
• Parties: The State, Plaintiff in Error, v. Morris A. Block
• Court: Missouri Supreme Court

62 S.W.2d 428

333 Mo. 127

The State, Plaintiff in Error, v. Morris A. Block

No. 32736

Supreme Court of Missouri

June 24, 1933

Writ of Error to the Circuit Court of City of St. Louis; Hon Clyde C. Beck, Judge.

Affirmed.

Roy McKittrick, Attorney-General, and Wm. Orr Sawyers, Assistant Attorney-General, for plaintiff in error.

(1) The writ of error was properly issued in this case. Secs. 3752 3753, 3755, R. S. 1929; State v. Carson, 18 S.W.2d 459. (2) The allegation in the indictment, that the defendant attempted to obtain the money by trick and deception is in the language of the statute, which is all the law requires. Secs. 3563, 4304, R. S. 1929; State v. Howell, 318 Mo. 781; State v. Woodward, 156 Mo. 147; Secs. 4095 4442, R. S. 1929; State v. Pickett, 174 Mo. 668; State v. Wilson, 223 Mo. 167.

Dubinsky & Duggan for defendant in error.

(1) Mere preliminary preparations in character indifferent cannot be regarded as guilty attempts. State v. Fraker, 49 S.W. 1021; State v. Davis, 6 S.W.2d 612; State v. Lourie, 12 S.W.2d 45; 16 C. J. 112. (2) To make a crime indicatable under the charges attempted by the State in this case, the acts of the party must be such that it would result in the commission of a crime unless frustrated by extraneous circumstances. State v. Fraker, 49 S.W. 1021. (3) An attempt to commit a crime consists of three elements: (1) the intention to commit the crime; (2) performance of some act towards the commission of a crime; and (3) the failure to consummate its commission. State v. Davis, 6 S.W.2d 611; 16 C. J. 113.

OPINION

Tipton, J.

On April 1st, 1932, at the February Term a grand jury of the Circuit Court of the City of St. Louis, Missouri, returned an indictment against the respondent, Morris A. Block and Otto J. Schwer, which omitting captions and signatures is as follows:

"THE GRAND JURORS OF THE STATE OF MISSOURI within and for the body of the City of St. Louis, now here in Court, duly impaneled, sworn and charged, upon their oath present, that Morris A. Block and Otto J. Schwer, on the 7th day of January one thousand nine hundred and thirty-two, at the City of St. Louis aforesaid, did then and there enter into an unlawful conspiracy, combine, confederation and agreement together to feloniously cheat and defraud the Universal Automobile Insurance Company, a corporation of the State of Texas, by means and use of a trick, false and fraudulent representations, pretenses and statements and that in pursuance of said unlawful conspiracy, combine, confederation and agreement did unlawfully, falsely, fraudulently, designedly and feloniously represent, pretend and state to the agents of the Universal Automobile Insurance Company, a corporation of the State of Texas, as aforesaid, that on the 28th day of December, 1931, while the said Morris A. Block, was operating, driving and in charge and control of a certain automobile, which automobile was moving and being propelled upon, over and along Natural Bridge Road at the intersection of Goodfellow Avenue, public highways of and in the City of St. Louis and State of Missouri, the said automobile of the said Morris A. Block was struck by and did then and there collide with an automobile driven and being operated by one John J. Lanigan; that one Oleatha Jones was a passenger in the automobile driven and operated by Morris A. Block; that the said Oleatha Jones suffered bodily injuries to-wit: Sprained back and right ovary region bruised, as the result of aforesaid collision with the automobile owned, driven and being operated by the said John J. Lanigan as aforesaid; that Doctor Otto J. Schwer gave the said Oleatha Jones an examination and found aforementioned injuries and submitted a bill of thirty-five ($ 35.00) dollars to the Universal Automobile Insurance Company, a corporation as aforesaid, for medical services rendered the said Oleatha Jones; that the said Morris A. Block agreed to settle the claim of the said Oleatha Jones for the sum of two hundred and fifty dollars ($ 250.00) and notified the Universal Automobile Insurance Company a corporation as aforesaid, to that effect; that the agents of the said Universal Automobile Insurance Company, a corporation as aforesaid, believed the said false and fraudulent representations, pretenses and statements so feloniously made as aforesaid by the defendants, to be true, and relied thereon and were then and there deceived thereby; and that the defendants did then and there, by means and use of the trick, false representations and pretenses aforesaid, unlawfully, falsely, fraudulently, designedly and feloniously attempt to obtain of and from the Universal Automobile Insurance Company, a corporation as aforesaid, the sum of two hundred and eighty-five ($ 285.00) dollars, lawful money of the United States, the property of the said Universal Automobile Insurance Company, a corporation as aforesaid:

"WHEREAS, in truth and in fact, the said Oleatha Jones was not a passenger in the automobile of the said Morris A. Block at the time of the collision of said automobile with the automobile of said John J. Lanigan, and

"WHEREAS, in truth and in fact, the said Oleatha Jones suffered no bodily injuries as the result of aforementioned collision, and

"WHEREAS, in truth and in fact, the said Oleatha Jones never received any medical attention from the said Doctor Otto J. Schwer, as aforesaid, all of which said foregoing facts the said Morris A. Block and Otto J. Schwer then and there well knew,

"Against the peace and dignity of the State."

On April 7, 1932, at the April Term, the respondent, Morris A. Block, filed a motion to quash the indictment alleging among other things: that the indictment failed to charge any offense of any kind or character against this respondent. On the 25th day of August, 1932, at the June Term, the circuit court sustained the motion to quash the indictment and ordered that the defendant "be discharged and go hence without day."

The State sued out a writ of error to this court.

The State contends that the indictment is properly pleaded under Section 4304, Revised Statutes 1929, which section is as follows:

"CHEATS, FRAUDS, BOGUS CHECKS, ETC. -- Every person who, with the intent to cheat and defraud, shall obtain or attempt to obtain, from any other person, or persons, any money, property or valuable thing whatever by means or by use of any trick or deception, or false and fraudulent representation, or statement or pretense, or by any other means or instrument or device, commonly called 'the confidence game,' or by means, or by use, of any false or bogus check, or by means of a check drawn, with intent to cheat and defraud, on a bank in which the drawer of the check knows he has no funds, or by means, or by use, of any corporation stock or bonds, or by any other written or printed or engraved instrument, or spurious coin or metal, shall be deemed guilty of a felony, and upon conviction thereof be punished by imprisonment in the state penitentiary for a term not exceeding seven years."

I. The allegations of the indictment charge the respondent with an attempt to feloniously obtain money from the Universal Automobile Insurance Company by means and use of a trick, or false representations and pretense in that the indictment charges the respondent with driving an automobile on a day certain over the Natural Bridge Road, and a pretended collision with another automobile; the pretending that the John J. Lanigan was the driver of the other automobile; the pretending that this respondent had Oleatha Jones as a passenger riding with him, who suffered injuries; the pretending that Doctor Otto J. Schwer examined Oleatha Jones for such injuries; the pretending that the doctor presented a bill for medical services; and the pretending that the respondent offered to settle the claim for a sum certain.

In State v. Pickett, 174 Mo. 663, 74 S.W. 844, in speaking of this statute, we said:

"It was, we think, the purpose of the statute to provide for a class of false representations not included in Section 1927, supra. It was intended to reach a class of offenders known as 'confidence men,' who obtained the money of their victims, 'by means of or by the use of some trick or representation designed to deceive.'"

Again in the case of State v. Wilson, 223 Mo. 156, l. c. 166, 122 S.W. 701, we said:

"The purpose of this statute was to provide for a class of false representations not included in some other section dealing with the subject of the ordinary false representations. It was intended to reach a class of offenders known as 'confidence men,' who obtained the money of their victims by means of or by the use of some trick or representation designed to deceive. The very...