State v. Boatright
| Decision Date | 31 May 1904 |
| Parties | THE STATE v. ROBERT BOATRIGHT, ED E. ELLIS AND BERT BRUMLEY, Appellants |
| Court | Missouri Supreme Court |
Appeal from Lawrence Circuit Court. -- Hon. Henry C. Pepper, Judge.
Reversed and remanded.
Geo. R Clay, Jos. M. McPherson, Wm. B. Skinner, Edw. J. White, Thos J. Rowe and Martin L. Clardy for appellants.
(1) The defendants should have been arraigned and made to plead to the specific charge on which they were convicted. The record shows that the defendants were arraigned, both in Jasper and Lawrence counties, upon the sole charge of "obtaining money under false pretenses." State v. Barnes, 59 Mo. 154; State v. Saunders, 53 Mo. 235; 2 Enc. Pl. and Pr., 762; Gaither v. State, 21 Tex.App. 527. (2) The court gave illegal and erroneous instructions to the jury over the defendants' objections and exceptions. 1. The first instruction is erroneous in telling the jury to find the facts therein specified, in a peremptory manner, and in assuming that there was evidence of a taking and asportation of Griffith's money by the defendants, when there was no evidence of this fact. 2. The second instruction is erroneous: (a) in not telling the jury that a felonious intent to steal the property was necessary, at the time the defendants acquired it (if they ever did). State v Lackland, 136 Mo. 30; State v. Moore, 101 Mo. 328. (b) It was also erroneous in assuming that there was a taking and asportation by the defendants; (c) in commenting upon the evidence of Griffith and Owen, and (d) in assuming that the evidence of such witnesses was absolutely true, instead of submitting this fact to the jury, the triers of the facts. 3. The third instruction was not based upon the evidence, as there was absolutely no evidence that Griffith ever bet a cent upon the foot race, but all the evidence was that he was betting Boatright's money and had deposited his in the bank. Under this instruction, the guilt of the defendants was hypothecated upon a state of facts not shown by the evidence to exist. (3) Upon the trial of a person for one offense it is incompetent to prove another and independent offense alleged to have been committed long after the offense for which he is on trial. The intention of defendants at the time they obtained possession of the money -- if they ever obtained the possession -- by some trick, fraudulent device or artifice, can not be established by evidence tending to prove that either of them was guilty of some other offense, long after the time of the transactions for which they are herein prosecuted. People v. Sharpe, 107 N.Y. 466; State v. Fitchette, 92 N.W. 527; State v. Vance, 94 N.W. 204; People v. Hurley, 58 P. 814; State v. Kelley, 27 A. 203; State v. Williams, 136 Mo. 293. (4) The court should have instructed the jury on the question of conspiracy. State v. Kennedy, 75 S.W. 988; sec. 2627, R. S. 1899. (5) There can be no larceny in the absence of an asportation of the property alleged to be stolen. 2 Bishop New Cr. Law (8 Ed.), sec. 794; State v. Koplan, 167 Mo. 298. There is no evidence in this case tending to prove an asportation by the defendants, Boatright, Ellis or Brumley; if the evidence disclosed the commission of any offense, it was embezzlement committed by James P. Stewart. People v. Miller, 169 N.Y. 339; Com. v. Barry, 124 Mass. 325. (6) The second instruction is bad because that instruction in effect told the jury that if they believed Griffith and Owen, then defendants were guilty.
Edward C. Crow, Attorney-General, for the State; H. W. Cury and J. W. Halliburton of counsel.
(1) On a trial for grand larceny under an indictment which charges defendants alone with the crime and contains no averment of conspiracy between defendants and others to commit the crime, evidence showing the conspiracy is admissible. State v. Kennedy, 75 S.W. 979. (2) Transactions of a kindred character may be proven to show intent and motive and to show conspiracy. Davis v. Vorhes, 141 Mo. 241; Greenleaf on Evidence (16 Ed.), sec. 142; 51 Central Law Journal 368. (3) (a) Under an indictment for grand larceny, a showing that money was obtained in a gambling scheme from a party who had no chance to win, constitutes larceny pure and simple. United States v. Murphy, 48 Am. 754; Miller v. Commonwealth, 39 Am. 194; State v. Skillbrick, 87 Am. St. 784; People v. Shaw, 58 Am. 372. (b) Obtaining money under a pretense that it is to be bet on a race, and with intent at the time to convert it to the bailee's own use, the race being a mere sham to aid this purpose, is larceny, and anyone obtaining possession of money or property by fraud with intent to convert it to his own use, is guilty of larceny. Trick and device and the means need not be set out in the indictment. Commonwealth v. Flynn, 57 Am. St. 472; Doss v. People, 49 Am. St. 180; Commonwealth v. Lawrence, 25 Am. St. 629; Beazley v. State, 49 Am. St. 418; State v. Murphy, 90 Mo.App. 548; State v. Zumbunson, 80 Mo. 111; People v. Miller, 88 Am. St. 546; State v. Hall, 85 Mo. 669; Loomis v. People, 67 N.Y. 322; People v. Camp, 56 Mich. 548; State v. Edwards, 59 L. R. A. 465. (4) The evidence of the statements of others than those indicted who were shown to be connected with defendants, and made during the time the transactions were taking place, were admissible, there being sufficient evidence to connect them with the conspiracy. State v. Walker, 98 Mo. 95. (5) The evidence on the part of the State was to the effect that the prosecuting witness did not intend to and did not part with the title to the $ 900. He put it up with Stewart as security for the $ 3,000 held by him. Under the law of false pretenses, the prosecuting witness must intend to pass title to the property. Otherwise it is larceny. McLain's Crim. Law, sec. 563.
On the twenty-seventh day of March, 1902, in the circuit court of Jasper county, Missouri, 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 four thousand dollars 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 nineteenth 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.
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 seventeenth of March, 1903, in the following manner:
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 eleventh day of October, 1900, were citizens of Kansas. They resided near each other, and near Ranton 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 four hundred acres. Witness is a farmer and stock dealer. About the tenth 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...
To continue reading
Request your trial