State v. Bowman

• Decision Date: 09 December 1922
• Docket Number: No. 23663.,23663.
• Parties: BOWMAN v. BOWMAN.
• Court: Missouri Supreme Court

247 S.W. 143

BOWMAN v. BOWMAN.

No. 23663.

Supreme Court of Missouri, Division No. 2.

December 9, 1922.

Appeal from Circuit Court, Jasper County; Grant Emerson, Judge.

John A. Bowman was convicted of obtaining money by false pretenses, and he appeals. Reversed and remanded.

A. W. Thurman and Paul G. Koontz, both of Joplin, for appellant.

Jesse W. Barrett, Atty. Gen., and J. Henry Caruthers, Sp. Asst. Atty. Gen., for the State.

Statement.

REEVES, C.

Convicted of obtaining money by false pretenses, defendant appeals. His punishment was assessed by the jury at two years in the penitentiary.

The information charged that he induced one Thomas L. Rogers to

"purchase from the said John A. Bowman, trustee of said the Pan-American Development Company, 10,000 shares of the common stock and 10,000 shares of preferred stock of the said the Pan-American Development Company, and as a purchase price therefor paid to the said John A. Bowman, trustee of said the Pan-American Development Company, the sum of $10,000 of the value of $10,000 and he, the said John A. Bowman, did then and there feloniously, willfully, designedly, knowingly and fraudulently, in the manner aforesaid, * * * did obtain of and from the said Thomas Rogers, the said sum of $10,000 of the value of $10,000 of the property of the said Thomas L. Rogers, with the intent him, the said Thomas L. Rogers, then and there to cheat and defraud of the same."

The evidence was to the effect that appellant, Olive J. Nelson, and Dr. C. V. Thorne, in the summer of 1910, conceived the idea of engaging in mining enterprises in Venezuela, South America. Appellant had been in South America on various enterprises and had acquired some Information about mineral deposits there.

Thorne, who had but a short time previously returned from the war, desired to go to South America, and, having been informed that appellant had been there, consulted with him relative to mining opportunities. The result of such an interview was that an association was formed between appellant, Thorne, and Nelson, under an instrument variously referred to as a "declaration of trust" and "common-law trust," under the name the Pan-American Development Company, wherein provision was made for the issuance of 100,000 shares of common stock of the par value of $1, and a tentative or additional provision for the further issuance of $100,000 of stock to be classified as "preferred shares" or "part preferred and the balance common shares."

This instrument was executed on the 9th day of August, 1919, and was acknowledged by the said parties on the 15th day of August, 1919, and filed for record in the office of the recorder of deeds of Jasper county on the same day. By the terms of the instrument Messrs. Bowman, Thorne, and Nelson were designated as "subscribers" and appellant Bowman, as "trustee," and it was stipulated therein that—

"The subscribers propose to transfer, assign and deliver to the trustee under the designation of the Pan-American Development Company certain property detailed and described as follows: All their right, title, interest and estate in and to certain concessions, privileges, leases, contracts, options and properties heretofore obtained and located la the jurisdiction of Venezuela, South America, all as more fully appears and is shown in a schedule thereof identified by the signatures of the parties hereto and in assignments, conveyances, transfers and other papers properly executed and filed with the trustee."

It was provided that "the trustee shall hold the legal title to all property at any time belonging to this trust, and shall have and exercise the exclusive management and control of the same," etc. It was the apparent purpose of said "declaration of trust" to clothe the trustee with the same powers as may be found ordinarily vested in a board of directors of a regularly formed corporation.

Due provisions were made for officers of the association or company, and Thorne was made president and Nelson secretary. Apparently no progress was made by the company or association until some time in September, when Thorne, then a practising dentist at Joplin, had an interview with the prosecuting witness, who is an Osage Indian, and who had acquired some ready money upon the sale of his oil properties in Oklahoma. The prosecuting witness was a patient of Thorne's and through him became interested in the proposition, and particularly with respect to the mining opportunities in South America. It was arranged that Rogers should meet with the members of the association and learn from appellant about mining prospects in Venezuela. Such a meeting was held, and Rogers testified that very attractive representations were made by appellant, and assurances given that, with the proper developments of certain leases and concessions then owned by the association, large returns could be immediately realized, and stockholders might reasonably expect large dividends within 60 days. This appealed to the speculative instinct of Rogers, and `he immediately arranged for the purchase of $10,000 par value of the common stock, with the understanding that he should have as a bonus several thousand shares of the preferred stock. At that meeting he saw the "declaration of trust." It was arranged at the same time, as a consideration' for his large investment, that Rogers should be made a vice president of the company and as such exercise the powers of the president in the absence of that official. Thorne was then president of the association or company.

On the 15th of September Rogers went to the First National Bank of Joplin with Nelson, the secretary, and there delivered to him a check for $10.000 signed by Rogers' wife, payable to Rogers, but regularly indorsed by him. In his presence this check was deposited by Nelson to the credit of the Pan-American Development Company. It was a new account in the bank and Nelson, as secretary, filed his signature. It was the arrangement that all checks upon funds of the company should be signed by the secretary and countersigned by the president or acting president. Certificates of stock were delivered to Rogers at the same time, and he concurrently became vice president.

It was further arranged that Rogers, Nelson, Thorne, and appellant should all have salaries, and Nelson and Rogers immediately arranged for the opening of offices "for the company. It was planned that appellant, the trustee, and Thorne, the president, should go to Venezuela and there undertake the development of mines. No `money could be drawn from the account of the said company, except upon check signed by the secretary and countersigned by Thorne, or, in his absence, by Rogers. In consummation of the arrangement for appellant and Thorne to go to Venezuela, a check was drawn for $500, upon which Nelson obtained the cash and delivered same to appellant. At the same time another check for $7,500 signed by Nelson and Thorne was drawn payable to the First National Bank and with that a...