State v. Craft

• Decision Date: 15 March 1939
• Docket Number: 36230
• Citation: 126 S.W.2d 177,344 Mo. 269
• Parties: The State v. B. H. Craft, Appellant
• Court: Missouri Supreme Court

126 S.W.2d 177

344 Mo. 269

The State v. B. H. Craft, Appellant

No. 36230

Supreme Court of Missouri

March 15, 1939

Appeal from Oregon Circuit Court; Hon. Will H. D. Green Judge.

Affirmed.

H D. Green, Homer Rinehart and Gordon P. Dorris for appellant.

(1) Instructions should be framed so a jury will not conclude or assume disputed facts to be true or established by the evidence, but the instructions should leave the jury free to make its own findings as to any disputed facts from the evidence. State v. Cohen, 100 S.W.2d 544. (a) Instruction purporting to cover case and to authorize verdict upon facts hypothesized should require finding of all essential facts. State v. Stewart, 29 S.W.2d 120; State v. Stewart, 44 S.W.2d 100. (b) Main instruction authorizing conviction if certain facts are true should require jury to find every fact necessary to constitute essential elements of crime charged. State v Stewart, 44 S.W.2d 100. (c) Instructions must be predicated on evidence. State v. Stanton, 68 S.W.2d 811; State v. Painter, 44 S.W.2d 79; State v. Mundy, 76 S.W.2d 1088; State v. Farmer, 111 S.W.2d 76. (2) To warrant conviction for obtaining money under false pretenses, false representations must be of existing facts. State v. Houchins, 46 S.W.2d 891. (3) On a trial for false pretenses, it is reversible error to permit the State to prove over defendant's objections the commission of other and distinct offenses committed on other persons at other times and places. State v. Turner, 76 Mo. 350; State v. Barker, 249 S.W. 75; State v. Patterson, 271 Mo. 110; State v. Garrison, 116 S.W.2d 23. (4) The fact the accused left the country after the commission of the alleged crime cannot be taken into consideration unless it appears he did so to avoid arrest. State v. Marshall, 115 Mo. 383, 78 Mo. 555, 98 Mo. 95, 92 Mo. 542. (5) Before evidence to establish flight is admissible, it is necessary for the State to prove defendant had actual knowledge that he was accused or suspected of crime and that defendant fled to avoid arrest or prosecution therefor. State v. Marshall, 115 Mo. 383; State v. McClure, 140 N.W. 203; Trapp v. New Mexico, 225 F. 968. (6) Flight in criminal law is defined as the evading of the course of justice by voluntarily withdrawing oneself in order to avoid arrest or detention or the institution or continuance of criminal proceedings. State v. Freyer, 48 S.W.2d 899; 16 C. J. 552; United States v. Alegado, 25 Philippine, 510.

Roy McKittrick, Attorney General, and Wm. Orr Sawyers, Assistant Attorney General, for respondent.

(1) The main instruction given in this cause properly states the law. Sec. 3735, R. S. 1929; State v. Rosegrant, 93 S.W.2d 971, 338 Mo. 1153; 25 C. J., pp. 611, 638, secs. 40, 75; State v. Keyes, 196 Mo. 163, 93 S.W. 801. (2) There was substantial evidence to support the verdict, hence defendant's demurrer was properly overruled State v. Cooper, 85 Mo. 260; State v. Roberts, 201 Mo. 727, 100 S.W. 484. (3) The amended information is sufficient in form and substance. Sec. 4095, R. S. 1929; State v. Foley, 247 Mo. 629, 153 S.W. 1010. (4) There is nothing to show that the jury were prejudiced or biased in their verdict by improper quarters for their deliberation. 16 C. J., p. 1072, sec. 2518. (5) The defense of honest belief in the truth of all representations made to the prosecuting witness was not unreasonably restrained by the court's ruling to defendant's evidence. State v. Riddle, 179 Mo. 296, 78 S.W. 606; State v. Whitworth, 126 Mo. 582, 29 S.W. 595. (6) Testimony of neighbors who were at the same time defrauded by defendant and co-conspirators by misrepresentations and conduct similar to alleged misrepresentations is properly admitted in evidence. State v. Fischer, 297 Mo. 174, 249 S.W. 46; State v. Donaldson, 243 Mo. 474, 148 S.W. 79; State v. Bayne, 88 Mo. 609. (7) There was no error in permitting the prosecuting attorney in his opening argument to state that defendant was not located by the officers for several months after the alleged crime. State v. Johnson, 192 S.W. 442; 16 C. J., p. 551, sec. 1062; State v. Witherspoon, 231 Mo. 721, 133 S.W. 323.

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

OPINION

WESTHUES

Appellant was convicted on a charge of obtaining money by false pretenses and sentenced to imprisonment in the penitentiary for a term of three years. He appealed. The case originated in Howell County, Missouri. On a change of venue the case was transferred to Oregon County where it was tried on March 16, 1938. The substance of the charge was that appellant and J. R. King, through false pretenses, obtained checks totalling $ 59.94 from J. C. Cooper and Allie Cooper which checks were cashed at a bank in West Plains, Missouri. The alleged false pretenses were, that appellant represented himself to be a doctor of medicine, and J. R. King an optometrist and eye specialist; that they, on the strength of such representations, were permitted to examine the eyes of J. C. Cooper, Allie Cooper and their son; that J. C. Cooper and Allie Cooper were induced to buy three pairs of spectacles for themselves and their son, which were to be delivered within a few days. The proof disclosed that appellant and King were accompanied by Threlkeld, an ex-sheriff of Howell County; that Threlkeld introduced King and appellant to the Coopers as "doctors and eye specialists." The evidence disclosed beyond doubt that King posed as an eye specialist and that he, King, made false representations as charged in the information. It was conceded that neither appellant or King had a license to practice medicine or optometry. To fully understand the trial theory we will now state appellant's position and theory of the case. Threlkeld testified for appellant. He denied that he introduced appellant as "doctor," or that appellant at any time in his presence represented himself to the Coopers or anyone else as a doctor. Threlkeld testified that he accompanied these men on an errand of his own. Appellant testified that he had driven a car for a Dr. Bateman, an optometrist, for a period of four years; that he acted as a flunky for Dr. Bateman carrying his medicine case and generally helping him in his work; that Dr. Bateman during these years traveled extensively through south Missouri. Appellant further testified that after Dr. Bateman quit that territory King, whom he had met on one occasion, appeared upon the scene; that he acted for King in the same capacity as he had for Dr. Bateman; that he honestly believed at the time that King was an eye specialist. He testified that King left owing him $ 35, that he cashed the checks given in payment of glasses, but delivered all of the money to King; that he did not receive one cent of the money that was paid by the people who were defrauded. Appellant emphatically denied that he at any time represented himself to the Coopers or anyone else as a doctor.

The State introduced substantial evidence tending to prove that appellant stated to a number of persons, that he was a doctor and had been practicing medicine in Springfield; that Dr. King had treated eyes and fitted glasses for many of his, Craft's patients and had always given satisfaction; that he, appellant, and King had rented rooms at West Plains and were going to locate there; that if the glasses they had sold were not satisfactory they would make adjustments. The Coopers testified that they relied upon the representations made and paid appellant and King $ 59.94 for three pairs of glasses which were never delivered. The State introduced evidence that appellant and King sold spectacles to others in the neighborhood on that same day and under like circumstances. B. H. Hardcastle and his wife testified for the State that they bought spectacles from appellant and King and paid for them; that they were given a receipt signed by appellant as "Dr. B. H. Craft, 456 Market Street, Springfield, Missouri." This receipt was introduced in evidence. The checks given were made payable to Craft. Appellant was asked if he had signed the receipts as "doctor" and he answered as follows: "I signed the 'B. H. Craft.'" He was further questioned as follows: "Q. Was the 'doctor' there, did you put that part on there?" A. That don't look like my handwriting to me, it may be." Appellant took the position that he was an innocent victim of circumstances; that he honestly believed King was an eye specialist; that he aided him in his work as he had Dr. Bateman; that he had no intention of leading anyone to believe that he was a doctor, and did not inform anyone to that effect. The State was permitted, over appellant's objection, to introduce evidence of other sales made on the same day as the purported sale to the Coopers.

Appellant briefed three points upon which he relies for a reversal of the judgment of conviction. In the first point briefed appellant assailed the principal instruction given for the State. It is asserted the instruction assumed that false statements were made by appellant and that such statements were untrue; that it also assumed that J. C. Cooper was induced to give checks and was defrauded. We cannot agree with this contention. The instruction commenced with the statement.

". . . if you find and believe from all the facts and circumstances introduced in evidence in the case, beyond a reasonable doubt, that. . . ."

This was followed by a recitation of what the appellant was alleged to have said and done, ending with the statement "if you so find." The instruction covers six pages of appellant's brief. We do not find where any fact in dispute was assumed. The instruction at various points repeated the phrases "if you so find" and "if you find he so represented." The instruction specifically required the jury to find, before...