State v. Bowdry

• Decision Date: 03 December 1940
• Docket Number: 36963
• Citation: 145 S.W.2d 127,346 Mo. 1090
• Parties: The State v. Bennett Warren Bowdry, alias C. W. Hale, Appellant
• Court: Missouri Supreme Court

145 S.W.2d 127

346 Mo. 1090

The State v. Bennett Warren Bowdry, alias C. W. Hale, Appellant

No. 36963

Supreme Court of Missouri

December 3, 1940

Appeal from Circuit Court of City of St. Louis; Hon. Robert L Aronson, Judge.

Reversed and remanded.

William J. Hough for appellant.

(1) The indictment fails to state facts showing a causal relationship between the representations and the delivery of the check where a sale of property is induced by the representations the indictment must set forth such sale and the relations of the parties. An indictment which alleges simply a false representation and the payment of money, without setting forth the acts done which induced and caused the payment, is fatally defective. State v. Saunders, 63 Mo. 482; State v. Bonnell, 46 Mo. 395; State v. Block, 62 S.W.2d 428; State v. Barbee, 136 Mo. 440, 37 S.W. 1119. (a) The indictment is vague, indefinite and uncertain. It is fatally defective to allege, as does this indictment, simply that the prosecuting witness "was induced" to turn over property without further alleging that he "did" in fact turn it over in reliance upon the representation. State v. Phelan, 159 Mo. 122, 60 S.W. 71; State v. Hubbard, 170 Mo. 346, 70 S.W. 883; State v. Kelley, 170 Mo. 151, 70 S.W. 477; State v. Clay, 100 Mo. 571, 13 S.W. 827. (2) The State must prove that at least one of the representations charged was made and that the representation proved was false. State v. Sherrill, 278 S.W. 992; State v. Zingher, 259 S.W. 451. (a) The State must prove as well as charge that the prosecuting witness relied upon the false representations in parting with his property; here, the evidence shows no reliance. State v. Eudaly, 188 S.W. 110; State v. Dines, 105 S.W. 722; State v. Mullins, 237 S.W. 502. (b) The State must further prove that the defendant knew the representation at the time he is alleged to have made it was false; here the evidence failed to show such knowledge. State v. Houchins, 46 S.W.2d 891; State v. Eudaly, 188 S.W. 110. (3) An instruction which comments on the evidence, assumes facts and is broader than the evidence is erroneous. Instructions 1 and 5 are therefore erroneous. State v. Miller, 212 Mo. 73, 111 S.W. 18; State v. Meiniger, 268 S.W. 71; State v. Hogan, 252 S.W. 387. (4) Evidence as to statements made in the presence of defendant to which the defendant makes no answer is improper where defendant is in custody at the time. State v. Kissinger, 123 S.W.2d 81; State v. Hogan, 252 S.W. 387. (5) It is highly improper and prejudicial for the prosecutor to refer to defendant's silence while in custody and to comment upon defendant's refusal to answer questions which might tend to incriminate him. State v. Swisher, 186 Mo. 1, 84 S.W. 910.

Roy McKittrick, Attorney General, and W. J. Burke, Assistant Attorney General, for respondent.

(1) The indictment in this cause is sufficient in form and substance. The information is based upon Section 4095, Revised Statutes 1929. State v. Saunders, 63 Mo. 482; State v. Bonnell, 46 Mo. 395; State v. Block, 62 S.W.2d 428; State v. Barbee, 136 Mo. 440, 37 S.W. 1119; State v. Loesche, 180 S.W. 875; State v. Spidle, 116 S.W.2d 96, 342 Mo. 571; State v. Harveston, 51 S.W.2d 533, 330 Mo. 799. (2) The State proved that at least one of the representations charged was made and that the representation proved was false. State v. Wren, 62 S.W.2d 853, 333 Mo. 575; State v. Loges, 98 S.W.2d 567, 339 Mo. 862. (3) Instruction 1 was not a comment on the evidence but was a main instruction which followed the information. State v. Miller, 212 Mo. 73, 111 S.W. 18; State v. Meininger, 268 S.W. 71; State v. Hogan, 252 S.W. 387. (4) Evidence is to the conversation between the defendant and Charles F. Ford and Kenneth McGuire was admissible and if admissible it was proper for the prosecuting attorney to refer to the evidence in his argument. State v. Hardin, 21 S.W.2d 761, 324 Mo. 28; State v. Capotelli, 292 S.W. 42, 316 Mo. 256; State v. Widick, 292 S.W. 53; State v. Kissinger, 123 S.W.2d 81.

Bohling, C. Cooley, C., concurs in result; Westhues, C., concurs.

OPINION

BOHLING

Bennett Warren Bowdry appeals from a judgment imposing a sentence of two years' imprisonment for obtaining a $ 1543.76 check by means of false pretenses. He presents issues respecting the indictment, the evidence, argument and the instructions.

I. The indictment describes the parties, A. G. Edwards & Sons and Soffer, as their agent, and alleges that appellant, with felonious intent to defraud A. G. Edwards & Sons, represented to Soffer that appellant had met one Roth; that Roth had referred appellant to Soffer, etc.; that appellant had two $ 1,000 New York Central Railroad Company bonds which appellant desired Soffer, as agent of A. G. Edwards & Sons, to sell for him, and that said bonds (photostatic copies being set out) were genuine bonds of said railroad; that Soffer, as agent, etc., believing, relying upon and being deceived by said false, etc., representations was "induced to turn over and deliver to" appellant "a check and draft" for $ 1543.76. The indictment then proceeds:

"That the said Bennett Warren Bowdry, alias C. W. Hale, by means and by use of said trick, false and fraudulent representations, pretenses and statements and the aforesaid instruments purporting to be bonds of the New York Central Railroad Company, a corporation, obtained of and from the said Ben. B. Soffer, as such agent and employe and the aforesaid persons, doing business as A. G. Edwards & Sons, the aforesaid check and draft, with the intent then and there to cheat and defraud the aforesaid persons, doing business as A. G. Edwards & Sons of the said check and draft."

The conclusion alleges that appellant had not met Roth; that Roth had not suggested that appellant see Soffer and transact business with him, as agent aforesaid; that appellant did not have possession of two $ 1,000 bonds of said railroad which he desired Soffer, as agent, to sell for him, and that the bonds described in the charge were not genuine but counterfeit.

a. Appellant says the indictment did not state all facts necessary to disclose the causal connection. Article II, Sec. 22, Missouri Constitution, provides: "In criminal prosecutions the accused shall have the right . . . to demand the nature and cause of the accusation . . ." Appellant obtained the $ 1543.76 check because he delivered two purported $ 1,000 bonds of the New York Central Railroad Company to said A. G. Edwards & Sons to sell for him, the cause of the accusation; but this is not charged. [The testimony so established.] No logical reason exists for appellant obtaining said check merely because of representations he had met Roth, or Roth had referred appellant to Soffer, or appellant had said two $ 1,000 bonds, or because he represented said bonds to be genuine. The charge should be redrafted. [State v. Saunders, 63 Mo. 482, 484; State v. Bonnell, 46 Mo. 395; State v. Block, 333 Mo. 127, 131[2], 62 S.W.2d 428, 429[2]. See also, State v. Whedbee, 152 N.C. 770, 67 S.E. 60, 27 L. R. A. (N. S.) 363; State v. Fisher, 79 Utah 115, 8 P.2d 589.]

b. Appellant also argues that the charge that Soffer, as agent aforesaid, was "induced to turn over and deliver to" appellant said "check and draft" does not charge that Soffer "did deliver" to appellant said "check and draft." State v. Phelan, 159 Mo. 122, 128, 60 S.W. 71, 73; State v. Hubbard, 170 Mo. 346, 353, 70 S.W. 883, 885, and State v. Kelly, 170 Mo. 151, 70 S.W. 477, support appellant's position. In the Phelan case the court held a charge that Thomas and Amanda Cain "were induced to then and there sell and deliver to" defendant certain horses was not a charge that said victims did "then and there sell and deliver" said property to defendant. The court reasoned: "The rule in criminal pleading is 'that in an indictment nothing material should be taken by intendent or implication.' . . . The phrase 'induced to sell' signifies that the defendant 'moved,' 'urged,' 'instigated' the Cains to sell to him, but it falls short of averring that they 'did sell' to him. The allegation should have been 'were induced to sell and did sell and deliver' to defendant said horses." The indictment in the Hubbard case was similar and the Phelan case was followed. The opinion in the Kelly case does not set out the indictment, but it follows the Phelan and Hubbard cases. The Phelan case does not discuss the effect of an additional charge in said indictment that defendant, by means of the false pretenses, etc., "did obtain and receive of and from" said Cains said personal property. So, too, with respect to the indictment in the Hubbard case. The indictment in the instant case not only charges that Soffer, as agent, was "induced to turn over and deliver to" appellant said check, but also (as hereinbefore set out) that appellant by means of said false representations "obtained" from Soffer, as agent, said check. To "obtain" means "to get hold of by effort; to get possession of; to procure; to acquire, in any way." Webster's New International Dictionary. To allege that one, by reason of specific representations by another, was induced to "turn over and deliver" to said other certain property and in addition to allege that by means of said representations said other "obtained" said property from the one (that is, got possession of it, et cetera) is to charge in substance and effect, giving language its commonly and reasonably understood meaning, that the one not only was induced to but did turn over and deliver to the other and that the other did obtain the property referred to. The Phelan case and the cases following it should not be followed in so far as they are out of harmony herewith.

II. A G. Edwards & Sons were bond...