State v. Boatright

• Decision Date: 31 May 1904
• Citation: 81 S.W. 450,182 Mo. 33
• Parties: STATE v. BOATRIGHT et al.
• Court: Missouri Supreme Court

81 S.W. 450

182 Mo. 33

STATE v. BOATRIGHT et al.

Supreme Court of Missouri, Division No. 2.

May 31, 1904.

LARCENY — EVIDENCE — SUFFICIENCY — POSSESSION — CARRYING AWAY — CONSPIRACY — INDICTMENT — INSTRUCTIONS — ARRAIGNMENT — PLEA OF GUILTY.

1. The prosecuting witness testified that he, being the stakeholder for money wagered between defendants, deposited it with a bank cashier, and also a certain sum as security that he would pay the money to the winner; that, after the race on which the bet was made was over, he went to the bank, where the cashier told him it was reported he had lost the bet, to which he replied that he had bet nothing, but defendants came in and said that he had lost, and displayed weapons, whereon he left. Held, on prosecution for larceny, that there was no evidence of taking and carrying away; it not being shown that defendants obtained possession.

2. The evidence showed no conspiracy between defendants and the cashier, so as to make his possession the possession of the defendants.

3. It was not necessary that an indictment for larceny should charge a conspiracy, in order to show that the retention of the property by another person, also charged with the crime, constituted possession by defendant.

4. Where prosecuting witness and another, on whose testimony defendants were convicted of larceny, testified that defendants procured prosecuting witness to hold the stakes for a pretended foot race, and to deposit a sum as security that he would pay the money over to the winner, and that the deposit was not returned, there was no ground for an instruction that if prosecuting witness believed the race was fair, and "staked his money on the same," etc.

5. Evidence of corrupt practices by defendants in unfair races, boxing matches, and other contests, with other parties, subsequent to the one complained of, was inadmissible.

6. An information charged defendants with having obtained money by means of false pretenses, and a second count charged larceny of the same sum. The record of arraignment showed that they waived reading of the information, and that, on being inquired of by the court as to their plea to the charge of "having obtained money under false pretenses," whereof they stood charged, "they say they are not guilty in manner and form as charged in the information." Held, that the plea put the whole charge in issue and would sustain a conviction for larceny.

Appeal from Circuit Court, Lawrence County; Henry C. Pepper, Judge.

Robert Boatright and others were convicted of larceny, and appeal. Reversed.

Geo. R. Clay, Jos. M. McPherson, Wm. B. Skinner, Edw. J. White, Thos. J. Rowe, and M. L. Clardy, for appellants. The Attorney General, H. W. Cury, and Jno. W. Halliburton, for the State.

GANTT, P. J.

On the 27th day of March, 1902, in the circuit court of Jasper County, Mo., the above-named defendants, together with James P. Stewart, Stewart Cockrell, and Jerry Cockrell, were charged upon the information of the prosecuting attorney of Jasper county with having obtained the sum of $4,000 from one M. Griffith by means of false pretenses upon the ____ day of ____, 1900, and in a second count with larceny of a like amount on the 19th day of December, 1900. A change of venue was granted these three defendants to Lawrence county, and to J. P. Stewart to Barton county.

Before granting the change of venue the circuit court of Jasper county caused the defendants to be arraigned. As a point is made on the arraignment, we insert the proceedings as they appear of record: "State of Missouri, Plaintiff, vs. Robert Boatright, Defendants. Now comes the prosecuting attorney for the state, and also comes the defendant Bert Brumley, in person and in open court, whereupon the said defendant is duly informed by the court that he stands charged upon the information filed herein against him by the prosecuting attorney of Jasper county, charging him with the crime of `obtaining money under false pretenses.' And, being now inquired of how he will acquit himself of said charge, for plea thereto the defendant says he will waive all rights to an arraignment herein, and enters his plea of not guilty as charged in the information, and of this he puts himself upon the county, and the prosecuting attorney doth the like." The same form of arraignment was had in reference to the defendant Ed Ellis. No arraignment of Boatright appears in the record of the Jasper circuit court.

After the cause was transferred on change of venue to Lawrence county, these three defendants were jointly arraigned on the 17th of March, 1903, in the following manner: "State of Missouri, Plaintiff, vs. Robt. Boatright, Ed. E. Ellis, and Bert Brumley, Defendants. No. 2,635. Obtaining Money under False Pretenses. Now at this day comes A. H. Redding, prosecuting attorney for Jasper county, Missouri, who prosecutes herein, and also comes the defendants herein, Robert Boatright, Ed. E. Ellis, and Bert Brumley, in their own proper persons and by attorney, and waive the reading of the information; and, they now being inquired of by the court as to their plea to the charge of `having obtained money under false pretenses,' whereof they stand charged, they say that they are not guilty in manner and form as charged in the information."

In the Lawrence court, before proceeding to trial, the defendants filed their motion to quash the information because the first count charged no offense, and the second count was vague and indefinite, and did not inform the defendants of the nature of the charge against them. This motion was overruled, and defendants duly excepted. The court proceeded to trial, and at or near the close of the evidence the state voluntarily dismissed as to the first count, and defendants were convicted of grand larceny, and each sentenced to the penitentiary for three years.

Confining ourselves for the present to the evidence tending to prove the particular larceny alleged in the indictment, the testimony tended to establish the following facts: Monroe Griffith, the prosecuting witness, and John Owens, on or about the 11th day of October, 1900, were citizens of Kansas. They resided near each other, and near Razton, Franklin county, in said state. Griffith was acquainted with two young men, Jerry Cockrell and Stewart Cockrell, who lived in Linn county, Kansas, about seven miles from the farm of witness. Witness was the owner of a farm of 400 acres. Witness is a farmer and stock dealer. About the 10th of October, 1900, the two Cockrells went to Griffith's farm and told him of the Webb City Athletic Club. The Cockrells had some local reputation as foot racers. They told him they were going to run a foot race at Webb City, and desired Griffith to go down and hold the stakes. Jerry Cockrell said he had run a great many races for the Athletic Club, and they had not paid him, and they were going to arrange a 50-yard race. They induced him to go down. They wanted one of his boys to go also, but he told Jerry he would not allow his boy to mix up in anything of that kind, and at first told them that he could not go; but three or four days later he met Stewart Cockrell at Lane, Kan., and he insisted on witness going, and he consented, and asked his friend Owens to go along with him. They said it did not require any money; that they could furnish plenty of money, and did not want him to bet anything. Stewart Cockrell paid all the expenses, railroad fare, etc., for both Griffith and Owens from Lane, Kan., to Webb City. Owens loaned Stewart the money to pay their fare. Griffith says that he had never spoken to Stewart of Jerry Cockrell until they came to his farm, about the 10th, and requested him to go down and act as stakeholder. They only stayed 10 or 15 minutes. Jerry said he had to go to Webb City that night. Witness drove on to Lane next day, and met Stewart Cockrell there, and he again asked him to go, and he finally consented. Stewart Cockrell was to pay the expenses, and said he would pay for Griffith's time. This witness states in substance: That Stewart and Jerry Cockrell told him that they had a scheme to get even with the club. They had not treated Jerry right. Stewart was to win the race. That Boat-right told him the same practically. On the 11th of October, 1900, Griffith, Owens, and Stewart Cockrell arrived at Webb City. To carry out these plans, Jerry Cockrell had preceded them. Griffith says they met Boat-right outside of the limits of Webb City, and there the plan was laid by which Stewart Cockrell was to beat Jerry and win Ellis' money. Ellis had already agreed to bet on Jerry. They then went to the 16 to 1 saloon, and there Owens or one of the party inquired if they had any one in that town "who could run a little." Stewart Cockrell was dressed as a green country boy. Jerry was then ushered into the room, and a mock introduction was gone through. The witness Griffith says the betting ran high; Ellis betting on Jerry, and Stewart Cockrell on himself with money furnished him by Boatright. Ellis and Stewart Cockrell bet $3,000 each on the race, and put the stakes in Griffith's hands as stakeholder. Thereupon Ellis said Griffith was a stranger to him, and ought to put up some security that he would pay over the stakes to the winner. Thereupon Griffith went to the Exchange Bank, and made a draft on the Ottawa, Kan., Bank for $2,000, and had Mr. Stewart, the cashier, wire if it would be honored, and, when advised it would be accepted, this draft and $900 in cash and a check of Owens for $100 were deposited, as Griffith says, as a guaranty. Griffith then also deposited the $6,000 stakes in the bank. Next morning they got up another bet of $1,000 on the side, and Griffith wired to his bank at Lane, Kan., and his draft for another $1,000 was honored and deposited with the bank. That afternoon the race between Jerry and Stewart Cockrell was run, and Jerry won. After the race was over, Ellis said to Griffith, "I won the money," and...