State v. Chick

• Decision Date: 13 March 1920
• Docket Number: No. 21872.,21872.
• Citation: 221 S.W. 10,282 Mo. 51
• Parties: STATE v. CHICK
• Court: Missouri Supreme Court

221 S.W. 10

282 Mo. 51

STATE v. CHICK

No. 21872.

Supreme Court of Missouri, Division No. 2.

March 13, 1920.

Motion for Rehearing Denied April 9, 1920.

Appeal from Jackson Criminal Court; Alonzo D. Burns, Judge.

Joseph S. Chick, Jr., was convicted of obtaining money by false representations and pretenses, and appeals. Affirmed.

Frank P. Walsh, Henry L. Jost, Henry S. Conrad, R. R. Brewster, M. E. Casey, M. M. Bogie, and James P. Aylward, all of Kansas City, for appellant.

Frank W. McAllister, Atty. Gen., and Henry B. Hunt, Asst. Atty. Gen. (Isaac B. Kimbrell, of Kansas City, of counsel), for the State.

MOZLEY, C.

Joseph S. Chick, Jr., was indicted by a grand jury in the circuit court of Jackson county, Mo., in which he is charged that by the use of false representation and pretense he feloniously defrauded Miss A. P. I. Kennedy of the sum of $1,600. He was tried in said court before a jury on the 11th day of the September term, 1918, and convicted, and his punishment fixed at two years in the penitentiary. Motions for new trial and in arrest were filed and overruled by the court, and exceptions to that action were duly preserved. The case is regularly here on defendant's appeal.

Facts.

Miss A. P. I. Kennedy was a schoolteacher, and had been for more than 30 years. She had taught for 30 years in Kansas City, she taught in the country before going to Kansas City. Defendant had gone to school to her in the country when he was a small boy, and she had known him since that time; she knew defendant's family and had great respect for them and also for the defendant. By dint of perseverance and careful saving she had, during the 30 years of her scholastic work, gotten together $2,500 or $2,600 in money.

The defendant had also moved to Kansas City, and was operating a business known as the "Chick Investment Company," and the entire operations of the concern were in his hands (he owned all the stock), and were performed personally by him or under his immediate supervision and direction. It appears from the evidence that a part of his business was to sell notes secured by first mortgages on approved real estate to customers who desired to make what they thought were safe investments (and such investments were represented by him to be safe), and make the amount thus invested earn interest until the note would fall due and be paid off by the maker thereof. Miss Kennedy desired to invest her money in this wise with defendant, in fact defendant earnestly solicited her to do so, and it resulted that he sold her two notes on December 16, 1914, which defendant told her were secured by first mortgages. This transaction is detailed by the testimony of Miss Kennedy as follows:

"Q. Did you have any business dealings with him (defendant)? State whether or not you had about the month of December, 1914. A. December 16, 1914, I bought two notes from him that he told me were secured by first mortgages. Q. Had you had a conversation with him about a business matter about the 1st of December of that year? A. The 2d of December. A note was secured. Q. Did you go to where he was and talk with him? A. Yes, sir. Q. Where did you see him? A. Why, outside that railing; he came to meet me outside of that railing where Miss Winship was back of the railing; he came to meet me. Q. You mean in the Scarritt building? A. Yes, sir; not in his private office. Q. Then your meeting was in his office in the Scarritt building? A. Yes, sir. Q. In what county and state is that located? A. Jackson county, state of Missouri. Q. What offices did he occupy there at that time; that is, on what floor were the offices located, and how many rooms did he occupy, and what signs were on the door as you recall? A. At the entrance was `J. S. Chick Investment Company,' a large entry hall, and right from the hall you entered into the office. Q. Were you in the Chick Investment Company's office? A. Yes, sir. Q. Did you talk with Chick there? A. Yes, sir. Q. What did you say to him, and what did he say to you? A. I told him I had come for the $1,600 due on a note I had bought from him (a prior transaction), which he paid, with interest due thereon, and he urged me to reinvest the money with him—`you will take that to somebody else, and you ought to let me invest it.' I collected the note which with the interest amounted to $1,648. This I deposited in the bank, and it ran my available cash to a little more than $2,500. Q. Now, after this conversation did you have a second conversation with him about the amount of cash you had available? A. Yes, sir. It was between the 2d and 16th of December, 1914. I had a telephone conversation with him. I told him I would consider; that he could show me. I told him I would consider it, and he could come out; if he had notes secured by first mortgages and places he could come out and show me, and an appointment was made to meet me at the schoolhouse at noon, and between the 2d and 6th of December, 1914, he called. Q. How did you go to see the places, if at all? A. He took me in a car. He took me to 3433 Bellefontaine. There were two houses there; one faced Bellefontaine, and the other faced Howard. I told him I would consider the house facing Bellefontaine, but would not consider the other at all. Q. Did he tell you the amount of the mortgage on the one you said you would consider? A. $1,200. Q. Then where did you go? A. To 3806 Olive. Q. Did you know Edward Van Osten? A. Not at that time. He did not tell me who owned the property he had shown me. Q. What did he say about the sort of paper he had against those properties? A. He said he had first mortgages; that they were first class, and that he would see that I was protected. He showed me the house at 3806 Olive, and showed it was well worth buying a note for $1,600 on this house. I told him I did not have enough money to make the investment, as the two sums aggregated $2,800, and all I Could get together was $2,500. An arrangement was made by which the witness gave defendant her personal note for $300.00 and her check for $2,505.14, the $5.14 representing the accrued interest on the $2,500. I gave my personal note and the check to defendant personally, and the two deeds of trust, one the Bellefontaine property and the other the Olive street property, together with the two notes that defendant said were secured by first mortgage were handed to me, but the abstract was kept by defendant in his office on the ground, as he said it would be safer with him, but he gave me a receipt for it. The check paid to defendant was drawn December 15, and delivered to defendant on 16, 1914, and the deal closed on that day, and was cashed by the Chick Investment Company."

The proof further shows, as a sequel to the story, that Mrs. E. T. Massie had, on the 9th day of December, 1914, bought from defendant the identical note and deed of trust which he subsequently assured Miss Kennedy he was selling to her, and paid for it with the following check:

No. 65. Kansas City, Mo., Dec. 9th, 1914. Western Exchange Bank, Kansas City, Mo.: Pay to the order of J. S. Chick Investment Company sixteen hundred and no/100 dollars

                ($1,600.00).               E. T. Massie
                                                E. M
                

This check was cleared, and was marked paid, and Chick got the money named therein. At the time of receiving the check he gave Mrs. Massie a real estate bond note, and in a day or two brought to her home the deed of trust securing the same, which, upon the pretext of caring for it and looking after insurance, taxes, etc., he induced her to allow him to take charge of for her, and this enabled him to deliver it later to Miss Kennedy, which he did.

On the 22d of November, 1915, the Chick Investment Company collapsed, and Hunt C. Moore was appointed its receiver. During the course of the receivership it developed that defendant had been largely engaged in the duplication of the notes described in the deeds of trust, and that Miss Kennedy's note was a duplicate, and not the note he had assured her he was selling to her.

The defendant admitted to the receiver that Miss Kennedy's note was a duplicate of the original note. With the exception of recalling J. R. Morrison, a deputy recorder, as a witness, defendant offered no testimony, but stood on his demurrer to the case made by the state. The testimony of Morrison related only to the course of business in the recorder's office as to the handling and recording of deeds of trust and their delivery to the owners.

The demurrer was overruled by the court, and is here assigned as error by defendant.

Opinion.

1. Appellant has charged to the credit of the court nisi the commission of 100 alleged errors in the trial of the case, but we think the points determinative of this case may be brought within a much narrower scope: (1) Is the indictment good? (2) were the jury properly instructed? and (3) is the testimony sufficient to justify the jury finding the defendant guilty? If so, his conviction should be upheld, but if otherwise it should be reversed and remanded.

Appellant contends that the indictment is fatally defective, and will not support a conviction because (he says) it fails to allege that defendant sold, assigned, or delivered the note to Miss Kennedy, or that Miss Kennedy bought it and parted with her money for it, relying on the false or fraudulent representations of defendant.

(2) The indictment, so far as necessary to quote, reads as follows:

"The grand jurors for the state of Missouri, duly impaneled, sworn, and charged to inquire within and for the body of the county of Jackson, upon their oath present and charge that one Joseph S. Chick, Jr., whose Christian name in full is unknown to said jurors, on the 6th day of December, 1914, at the county of Jackson and state of Missouri, contriving, designing, and intending to cheat and defraud one A. P. I. Kennedy of her goods and chattels and personal property, did apply to and request the said A. P....