State v. Brickey

• Decision Date: 10 June 1941
• Docket Number: 37365
• Citation: 152 S.W.2d 1055,348 Mo. 248
• Parties: The State v. Norville W. Brickey, Appellant
• Court: Missouri Supreme Court

152 S.W.2d 1055

348 Mo. 248

The State v. Norville W. Brickey, Appellant

No. 37365

Supreme Court of Missouri

June 10, 1941

Rehearing Denied July 25, 1941.

Appeal from Audrain Circuit Court; Hon. Edmund L. Alford Special Judge.

Affirmed.

R D. Rodgers, Hulen & Sappington and Cullen Coil for appellant;

Williams, Nelson & English and R. F. O'Bryen of counsel.

(1) Instruction 1 is erroneous because: (a) The instruction assumes the existence of essential elements of the offense charged and does not require the jury to find as facts the existence of such essential elements. (b) The instruction constitutes a comment on the evidence and permits the jury to find facts of which there was no evidence. (c) The instruction is so long, involved and contradictory that it amounts to a misdirection to the jury. State v. Jones, 306 Mo. 437; State v. Ferguson, 221 Mo. 524; 16 C. J., p. 949; State v. Steele, 226 Mo. 583; State v. Socwell, 318 Mo. 742; 25 C. J., p. 599, sec. 27; State v. Young, 266 Mo. 732; State v. Bohle, 182 Mo. 65; State v. Evers, 49 Mo. 545; State v. Endaly, 188 S.W. 113; State v. Mundy, 76 S.W.2d 1091; State v. Farmer, 111 S.W.2d 79. (2) The argument of counsel for the State in referring to the fact that defendant had not testified in his own defense violated the statutory and constitutional rights of defendant. State v. Shuls, 329 Mo. 252; State v. Moxley, 102 Mo. 393; Sec. 3693, R. S. 1929. (3) Defendant's instruction in the nature of a demurrer to the evidence should have been given, because the State failed to prove the falsity of the representations alleged in the information. State v. Sherrill, 278 S.W. 992; State v. Morris, 230 Mo. 631. (4) Testimony of the witness Lopata with reference to an alleged shortage in the sinking and interest fund of the Festus School District was inadmissible, and its admittance was highly prejudicial to the defendant. State v. Garrison, 342 Mo. 960, 116 S.W.2d 23.

Roy McKittrick, Attorney General, and Robert L. Hyder, Assistant Attorney General, for respondent.

(1) The information is in proper form. Sec. 4095, R. S. 1929; State v. Young, 266 Mo. 723, 183 S.W. 305; State v. Keyes, 196 Mo. 136, 93 S.W. 801. (2) The verdict is in proper form and responsive to the issues. State v. Matkins, 37 S.W.2d 422; Sec. 4065, R. S. 1929. (3) The judgment and sentence were proper. Secs. 3711, 3713, 3714, R. S. 1929. (4) Instruction 1 given by the court was proper. State v. Clice, 252 S.W. 465; State v. Reynolds, 131 S.W.2d 552; State v. Keyes, 196 Mo. 136, 93 S.W. 801; State v. Londe, 132 S.W.2d 501; State v. Keyes, 196 Mo. 136, 93 S.W. 801. (5) The closing argument by the State's attorney did not constitute reversible error. State v. McKeever, 101 S.W.2d 22, 339 Mo. 1066; State v. Fields, 234 Mo. 615, 138 S.W. 518; State v. Pierce, 7 S.W.2d 269; State v. Faught, 140 Mo.App. 369, 124 S.W. 62; State v. Janes, 1 S.W.2d 137, 318 Mo. 525; State v. Shuls, 44 S.W.2d 94, 329 Mo. 245. (6) The appellant's demurrer at the close of all the evidence was properly overruled. (7) The testimony of the witness Lopata was properly admitted. State v. Howell, 296 S.W. 370, 317 Mo. 330; State v. Garrison, 342 Mo. 453, 116 S.W.2d 23.

Bohling, C. Cooley and Westhues, CC., concur.

OPINION

BOHLING

Norville W. Brickey was convicted of obtaining on April 14, 1938, a $ 2953.19 warrant from the School District of Festus, Missouri, also known as School District No. 48 of Jefferson County, Missouri, by means of false pretenses and was sentenced to two years' imprisonment in conformity with the verdict. He appeals, attacking the sufficiency of the evidence, the admissibility of certain evidence, the State's main instruction, and certain arguments on behalf of the State.

The charge was to the effect defendant falsely represented that $ 2953.19 had become due and payable on the bonded indebtedness, principal and interest, of said School District; and that he had paid the same and was entitled to reimbursement therefor. A warrant was authorized, payable to defendant, in said amount. The School District had issued bonds in the years 1910, 1915, 1916, 1922, 1924 and 1933. Defendant's contention that a case was not made, on the ground the State failed to establish that the bonds of the 1910, 1915, 1916, 1922 and possibly a portion of the 1924 issues had been paid and discharged and, therefore, they might have been due and payable, is not well taken.

The Board of Education did not keep a bond register. The clerk of the Board testified that at the time of the trial the first 137 pages of the minute book of the Board, although therein prior to 1936, were missing and that the record of the minutes of said Board now went back only to April 3, 1935. This necessitates extending the statement.

Defendant had been president of said Board of Education since 1922. He also was president of the Citizens Bank of Festus and had held other official positions. He had the confidence of other members of said Board and transacted the District's business with outside parties in respect to its bonded indebtedness to the exclusion of the other Board members. In 1924 the School District issued $ 50,000 principal amount of bonds. Stifel, Nicolaus and Company, investment bankers, of St. Louis, Missouri, purchased the entire issue and sold the bonds to their clients. In 1933 the School District of Festus issued $ 35,000, principal amount, in bonds for the purpose of refunding certain of the 1924 bonds. John J. Niemoeller testified, that he was Secretary-Treasurer of Stifel, Nicolaus and Company and was familiar with the bond issues of the Festus School District; that defendant took up with his firm the matter of issuing said District's refunding bonds of 1933; and that there were $ 35,000, principal amount, of the 1924 bonds outstanding. A copy of the minutes of said Board of Education, certified by the clerk thereof in his official capacity and filed in the office of the State Auditor in connection with said $ 35,000 bond issue, discloses that said minutes, bearing date of March 29, 1933, were signed by defendant as president of said Board of Education; that the resolution authorizing the issuance of said $ 35,000 in bonds recited that bonds Nos. 1 to 18, inclusive, aggregating $ 15,000, of the 1924 issue had been paid and that bonds Nos. 19 to 60, inclusive, aggregating $ 35,000, were outstanding and unpaid; and that said resolution was unanimously adopted by the members, including defendant, of said Board. Mr. Niemoeller further testified that defendant delivered to Stifel, Nicolaus and Company the $ 35,000 of new bonds; that said Company effected the exchange of $ 25,000, principal amount, of the 1924 issue for a like amount of the 1933 refunding bonds, and said $ 25,000 of said 1924 bonds were canceled; that said Company could not prevail upon the then owner of the remaining $ 10,000, principal amount, of said 1924 bonds to exchange the same, and that on December 8, 1933, said Company redelivered $ 10,000, principal amount, of the 1933 refunding bonds to the School District, taking its receipt, executed by defendant as president of said Board, therefor. Thereafter, there is no need to detail the testimony, on June 27 and 28, 1935, said Company and defendant, acting on behalf of the School District, effected the exchange of the aforementioned $ 10,000 of the 1924 bonds for a like amount of 1933 refunding bonds, defendant delivering to said Company the certificate of H. E. Vaughn, as Treasurer of said School Board, certifying that said bonds had been canceled. These bonds, for $ 500 and $ 1000, principal amounts, were Nos. 32, 33, 35, 36, 41-47, both inclusive, of said 1924 issue.

Mr. Vaughn testified that defendant presented the certificate to him for signature; that he asked for the bonds; that defendant said: "We have them to destroy;" and that, having confidence in defendant, he signed the certificate but did not personally cancel the bonds.

Stifel, Nicolaus and Company was paying agent for the 1933 bond issue; i. e., received the money to pay the principal and interest as they matured. Under date of April 8, 1938, said Company forwarded to the School District, in care of defendant, a statement showing principal of $ 1000 and interest of $ 775 on the 1933 refunding bonds due on April 15, 1938, plus a paying charge of $ 3.19 -- total $ 1778.19. At a meeting of the Board of Education on April 13, 1938, defendant informed the Board he had been in St. Louis and had given his personal check in the amount of $ 2950, plus a paying charge (the amount of which he did not then recall), to take care of the principal and interest due on the School District's bonds. The Board authorized a warrant therefor, the paying charge to be added. The next day defendant presented his statement to the clerk of the Board. It read: Principal $ 2000; Interest $ 950; Paying fee $ 3.19; Total $ 2953.19. The clerk issued a warrant to defendant for the $ 2953.19 on April 14, 1938. Defendant admitted he received the $ 2953.19 called for in the warrant.

Defendant by check dated April 15, 1938, paid the $ 1778.19 due under Stifel, Nicolaus and Company's statement, which, according to the record, covered the full amount then due on the 1933 issue. Defendant's cross-examination of Chas. E. Porter, cashier of the Citizens Bank, attempted to account for the balance of the $ 2953.19 as follows: On March 26, 1938, defendant paid the bank $ 5000 and $ 111.81 interest for $ 5000 of the School District's said bonds, and received a $ 1000 bond which was at the bank, the others being in St. Louis. By check dated April 15, 1938, defendant paid $ 50 interest on two $ 1000 School District's bonds held by one Henry Meyers. The interest on $ 5000 at five per cent from March 26, 1938...