State v. Donaldson

• Decision Date: 01 June 1912
• Citation: 148 S.W. 79
• Parties: STATE v. DONALDSON.
• Court: Missouri Supreme Court

148 S.W. 79

STATE v. DONALDSON.

Supreme Court of Missouri, Division No. 2.

June 1, 1912.

1. INDICTMENT AND INFORMATION (§ 32) — CONCLUSION — REQUISITES.

An indictment for false pretenses which sets out the pretenses and denies the truth of each, and after negativing the last pretense, concludes, after a semicolon, with the formal language, "against the peace and dignity of the state," complies with the constitutional requirement that all indictments shall conclude, "against the peace and dignity of the state." Const. art. 6, § 38.

2. FALSE PRETENSES (§ 26) — INDICTMENT — REQUISITES.

An indictment for false pretenses, which sets forth false pretenses based on accused's representation that a corporation owned in fee simple a tract of land clear of incumbrances, that the corporation was solvent, and not indebted to any one, that the shares of its stock were worth their par value, and which avers that prosecutor, believing the pretenses, was induced to purchase stock and to execute and deliver to accused in payment therefor his negotiable note, and that, by means of the representations, accused obtained from prosecutor the note with intent to defraud, and which negatives the truth of each representation alleged, sufficiently charges the crime.

3. FALSE PRETENSES (§ 41) — EVIDENCE — ADMISSIBILITY.

On a trial for obtaining money by false pretenses, based on false representations as to the property and solvency of a corporation, thereby inducing prosecutor to purchase stock therein and deliver to accused a note for the price, evidence of the relations between accused and the prosecutor and a daughter of the latter before and during the time of the making of the false representations, including the fact that accused had become engaged to marry the daughter of prosecutor, and was treated by prosecutor as a member of the family at the time of the making of the representations, was admissible.

4. CRIMINAL LAW (§ 371)—EVIDENCE OF OTHER OFFENSES—ADMISSIBILITY.

On a trial for obtaining money by false pretenses based on accused's false representations, inducing the purchase of corporate stock by prosecutor and the delivery of a note to accused for the price, evidence that accused made similar representations in selling and attempting to sell stock in the same corporation to third persons after the sale to prosecutor was admissible to show criminal intent to defraud.

5. FALSE PRETENSES (§ 51) — EVIDENCE— QUESTION FOR JURY.

Where, on a trial for obtaining a note by false pretenses, the testimony was conflicting on the issue whether the note was delivered to accused in Missouri or in Illinois, and prosecutor and his daughter testified that the note was executed and delivered in Missouri while accused testified that it was delivered in Illinois, the question was for the jury.

6. FALSE PRETENSES (§ 51) — RELIANCE ON REPRESENTATIONS—QUESTION FOR JURY.

Where, on a trial for obtaining a note for the purchase price of stock in a corporation by false pretenses, the evidence showed that prosecutor, at accused's suggestion, personally viewed the real estate of the corporation, but his investigation was incomplete, and gave him but little information as to the truth of the representations made by accused, and prosecutor testified that he relied on the representations, the question whether accused investigated for himself or relied on the representations was for the jury, it not being necessary to support a conviction that the false pretenses should be the sole inducement to parting with the property, but enough that they have a controlling influence.

7. FALSE PRETENSES (§ 9) — RELIANCE ON REPRESENTATIONS—QUESTION FOR JURY.

A person who by false representations obtains property from another cannot, when charged with the crime of obtaining property by false pretenses, rely on the fact that the person defrauded might, by vigilance, have discovered the falsity of the representations, and thereby escaped being defrauded.

8. FALSE PRETENSES (§ 13) — INJURY TO PROSECUTOR — EVIDENCE — SUFFICIENCY.

Where, on a trial for obtaining a note for the price of stock by false pretenses, the evidence showed that accused, by false pretenses, obtained from prosecutor a note, and the value of the note and its payment by prosecutor, there was evidence that prosecutor was defrauded.

9. CRIMINAL LAW (§ 721)—TRIAL—REMARKS OF COUNSEL—COMMENT ON FAILURE OF ACCUSED TO TESTIFY.

Under Rev. St. 1909, § 5243, prohibiting comment on the failure of accused to testify in his own behalf, it is error for the state's counsel to comment on the failure of accused to testify as to any fact in issue, or to deny any fact testified to by another witness.

10. CRIMINAL LAW (§ 1171) — HARMLESS ERROR — IMPROPER ARGUMENT OF COUNSEL.

Where, on a trial for obtaining property by false pretenses, the evidence showed the relations of accused and prosecutor, and the engagement of accused to marry prosecutor's daughter when he had obtained a divorce, the argument of the state's counsel that accused testifying in his own behalf had not denied having said that his wife was a disreputable woman, though improper as a comment on the failure of accused to testify, was not ground for reversal.

11. CRIMINAL LAW (§ 1171) — HARMLESS ERROR — IMPROPER ARGUMENT OF COUNSEL.

Where, on a trial for obtaining property by means of false pretenses, the state, to prove intent, proved similar representations by accused to third persons, the argument of the state's counsel that accused testifying in his own behalf had not denied making similar representations to others, though improper as a comment on accused's failure to testify, was not ground for reversal.

Appeal from St. Louis Circuit Court; Eugene McQuillin, Judge.

Aaron B. Donaldson was convicted of crime, and he appeals. Affirmed.

T. J. Rowe, Thos. J. Rowe, Jr., and Henry Rowe, for appellant. Elliott W. Major, Atty. Gen., and John M. Dawson, Asst. Atty. Gen., for the State.

KENNISH, J.

At the February term, 1911, of the circuit court of the city of St. Louis, appellant was tried upon an indictment charging him with having violated section 4765, Revised Statutes 1909, by obtaining from James H. Downs, by means of false and fraudulent representations, the promissory note of said Downs for the sum of $8,000. The jury returned a verdict of guilty, assessed appellant's punishment at imprisonment in the penitentiary for a term of three years, and from the judgment entered upon the verdict he appealed to this court.

The indictment, omitting caption and signature, was as follows: "The grand jurors of the state of Missouri, within and for the body of the city of St. Louis, now here in court, duly impaneled, sworn and charged, upon their oath present that Aaron B. Donaldson on or about the twenty-second day of November, one thousand nine hundred and nine, at the city of St. Louis aforesaid, feloniously, designedly, knowingly, and fraudulently, with the intent then and there to cheat and defraud one James H. Downs, did falsely represent, pretend and state to the said James H. Downs that a certain corporation known and named the Mississippi Valley Iron & Furnace Company, and incorporated under the laws of the state of Missouri, owned in fee simple nine hundred acres of mineral lands, located, situated, and being in Butler and Wayne counties in said state of Missouri; that the properties of the said the Mississippi Valley Iron & Furnace Company were then and there free and clear of indebtedness and incumbrance; and that the said the Mississippi Valley Iron & Furnace Company then and there was in good solvent condition, and had no indebtedness and was not indebted to any person or persons, and that the shares of the capital stock of the said the Mississippi Valley Iron & Furnace Company were then and there of the value of one hundred dollars per share and worth their par value; and the said James H. Downs believing said false pretenses and representations so made by the said Aaron B. Donaldson as aforesaid to be true, and being deceived thereby, was induced by reasons thereof to then and there purchase from the said Aaron B. Donaldson three hundred and seventy shares of the capital stock of the said the Mississippi Valley Iron & Furnace Company, and as part of the purchase price therefor to then and there deliver and transfer to the said Aaron B. Donaldson a certain valuable thing, to wit, a certain negotiable promissory note, executed by the said James H. Downs and dated at the city of St. Louis, in the state of Missouri, November twenty-second, one thousand nine hundred and nine, promising to pay to the order of said A. B. Donaldson, three months after date, the sum of eight thousand dollars with interest from date at the rate of six per cent. per annum, and of the value of eight thousand dollars, and the said James H. Downs then and there did deliver and transfer the said valuable thing, to wit, said negotiable promissory note described as aforesaid for the sum of eight thousand dollars to him, the said Aaron B. Donaldson, as and for part of the purchase price of said three hundred and seventy shares of stock described as aforesaid and the said Aaron B. Donaldson then and there feloniously, willfully, designedly, knowingly, and fraudulently, in the manner aforesaid, and by means of the fraudulent representations aforesaid did obtain of and from the said James H. Downs the said valuable thing, to wit, the said negotiable promissory note for the sum of eight thousand dollars, executed by the said James H. Downs as aforesaid, and of the value of eight thousand dollars, all the property of the said James H. Downs, with the intent him, the said James H. Downs, then and there to cheat and defraud of the same Whereas, in truth and in fact, the said corporation, the Mississippi Valley Iron & Furnace Company, did not then and there own in fee simple nine hundred acres of mineral lands located, situated and being in Butler and Wayne counties,...