State v. Donaldson

• Decision Date: 01 June 1912
• Parties: THE STATE v. AARON B. DONALDSON, Appellant
• Court: Missouri Supreme Court

148 S.W. 79

243 Mo. 460

THE STATE v. AARON B. DONALDSON, Appellant

Supreme Court of Missouri, Second Division

June 1, 1912

Appeal from St. Louis City Circuit Court. -- Hon. Eugene McQuillin Judge.

Affirmed.

T. J Rowe, Thos. J. Rowe, Jr., and Henry Rowe for appellant.

(1) The indictment fails to state sufficient facts to constitute a violation of section 4565, Revised Statutes 1909. (2) The verdict is against the overwhelming weight of the evidence. (3) The court erred in permitting Ora B. Ridgeley to testify that she was engaged to marry the defendant when he obtained a divorce from his wife; and that he told her she was a disreputable person. (4) Instructions offered by defendant should have been given. The court did not properly instruct the jury; and did not instruct them on all questions of law necessary for their information. (5) James Shaner, assistant circuit attorney, in his closing address to the jury was permitted, notwithstanding defendant's objections, to make improper remarks to the jury.

Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.

(1) The indictment is drawn under section 4765, Revised Statutes 1909. It sufficiently describes the offense and identifies the name of the victim. State v. McChesney, 90 Mo 120. The test is whether or not appellant could plead in bar the judgment rendered against him, be it either a conviction or acquittal. State v. Woodward, 156 Mo. 147. All the elements necessary to charge the crime are laid in this indictment, and the constitutional provision is complied with. Constitution, art. 2, sec. 22; State v. Vorback, 66 Mo. 168. It sets forth the exact nature of the false representations made by appellant minutely and in detail, identifies the victim, and in every way describes the offense. State v. Cameron, 117 Mo. 376. (2) Evidence of other similar crimes is admissible to show intent to defraud. State v. Saroney, 95 Mo. 352; State v. Turley, 142 Mo. 403; State v. Eilson, 143 Mo. 334; State v. Keyes, 196 Mo. 147; State v. Martin, 226 Mo. 538. The court gave the jury a cautionary instruction upon this evidence which has often been approved by this court. Evidence of similar false pretenses is particularly relevant when it appears that the fraudulent act for which the accused is on trial does not stand alone, but is a part of the scheme, not merely to defraud one person, but to swindle the community at large. Underhill on Crim. Ev. (2 Ed.), sec. 4438; People v. Whelan, 154 Cal. 472; State v. Briggs, 74 Kans. 382; People v. Gray, 67 Cal. 275; People v. Neyce, 86 Cal. 393; People v. McGlade, 139 Cal. 70; 7 Ency. Evidence, 627; 12 Cyc. 408, 411; 1 Wigmore on Evidence, sec. 320; 2 Wharton's Crim. Law, sec. 2128. (3) The fact that the victim, Mr. Downs, made the flying trip to the mine does not make the pretense absurd or irrational, nor does it show that Mr. Downs had at the very time the means of detecting the fraud. 2 Wharton, Crim. Law, secs. 1187, 1188; 2 Bish. Crim. Law, secs. 433, 434; Commonwealth v. People, 14 Ill. 348. It was long ago settled in England that the pretense need not be such as would impose upon a man of ordinary caution, and the American courts are harmonious on the proposition. State v. Williams, 12 Mo.App. 415; State v. Montgomery, 56 Iowa 195; Smith v. People, 47 N.Y. 303; People v. Pray, 1 Mich. N. P. 69; Colbert v. State, 1 Tex.App. 314; Johnson v. State, 36 Ark. 242. It is impossible to estimate false pretense other than by its effect. 2 Bish. Crim. Law (8 Ed.), sec. 436; May v. State, 17 Tex.App. 213; State v. De Lay, 93 Mo. 98; State v. Evers, 49 Mo. 542. The note described in the indictment was obtained by appellant by the means denounced in the statute. State v. Willard, 109 Mo. 247; Watson v. People, 87 N.Y. 566; Clark & Marsh. on Crimes, pp. 831-833; State v. Janson, 80 Mo. 97; State v. Vandenburg, 159 Mo. 230; State v. Hubbard, 170 Mo. 346; State v. Keyes, 196 Mo. 136. (4) Courts are loath to reversing judgments on account of improper remarks of attorneys -- especially as in this case where the proof of guilt is clear. In such case a verdict of guilty would likely have been returned, regardless of the improper remarks. State v. Hess, 240 Mo. 147; State v. Dietz, 235 Mo. 341; State v. Harvey, 214 Mo. 411; State v. Church, 199 Mo. 638; State v. Hibler, 149 Mo. 484; State v. Summar, 143 Mo. 220; State v. Dusenberry, 112 Mo. 294; R. S. 1909, sec. 5115.

KENNISH, J. Brown, P. J., and Ferriss, J., concur.

OPINION

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 E. Downs, by means of false and fraudulent representations, the promissory note of said Downs for the sum of $ 8000. 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 and 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 and Furnace Company were then and there free and clear of indebtedness and incumbrance; and that the said the Mississippi Valley Iron and 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 and 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 and 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, wilfully, 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 and 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 in said State of Missouri, as he, the said Aaron B. Donaldson, then and there well knew; and,

"Whereas, in truth and in fact, the properties of the said the Mississippi Valley Iron and Furnace Company were not then and there free and clear of indebtedness and incumbrances, as he, the said Aaron B. Donaldson, then and there well knew; and,

"Whereas, in truth and in fact, the said the Mississippi Valley Iron and Furnace Company was not then and there in good solvent condition and then and there had a large indebtedness and was largely indebted to divers persons, to-wit, the National Iron Mining Company, a corporation, and other persons to these grand jurors unknown, as he, the said Aaron B. Donaldson then and there well knew; and,

"Whereas, in truth and in fact, the said shares of the said capital stock of the said the Mississippi Valley Iron and Furnace Company were not then and there of the value of one hundred dollars per share, nor worth their par value, as he, the said Aaron B. Donaldson, then and there well knew; against the peace and dignity of the State."

As the record contains the testimony of many witnesses and also much documentary evidence, we shall state only such facts as are necessary to an...