State v. Drum

• Decision Date: 04 December 1919
• Docket Number: No. 21643.,21643.
• Citation: 217 S.W. 23
• Parties: STATE v. DRUM.
• Court: Missouri Supreme Court

217 S.W. 23

STATE v. DRUM.

No. 21643.

Supreme Court of Missouri, Division No. 2.

December 4, 1919.

Appeal from Circuit Court, Carter County; E. P. Dorris, Judge.

Frank Drum was convicted of obtaining property by false pretenses, and appeals. Reversed and remanded.

S. L. Clark, of Van Buren, and O. L. Munger, of Piedmont, for appellant.

Frank W. McAllister, Atty. Gen., and Thomas J. Cole, Sp. Asst. Atty. Gen., for the State.

WHITE, C.

The appeal is from a conviction for obtaining property by false pretenses in violation of section 4565, R. S. 1909.

An amended information was filed April 15, 1919, in the circuit court of Carter county, by J. L. Huett, prosecuting attorney, in which information it was charged:

That the defendant, Frank Drum, on the 7th day of October, 1912, feloniously, falsely, and with intent to defraud one Humphrey Gaines of 48 head of cattle represented to said Humphrey Gaines "that he had on deposit in the Williamsville State Bank, a banking corporation organized and existing under and by virtue of the laws of the state of Missouri, the sum of $1,175, and the said Frank Drum, knowingly, willfully, feloniously, and with intent to cheat and defraud the said Humphrey Gaines out of the said 48 head of cattle signed and delivered to the said Humphrey Gaines a check drawn on the said Williamsville State Bank for the sum of $1,175, representing that said check was good and genuine, and that said check would be paid by the said Williamsville State Bank and the said Humphrey Gaines relying upon said false and fraudulent statements and representations and believing that said check was good and genuine and would be paid as represented, sold and delivered to the said Frank Drum 48 head of cattle of the value of $1,175, whereas in truth and in fact the said Frank Drum did not have on deposit in the Williamsville State Bank the sum of $1,175, and that the said check was not good and genuine, and was not paid, and the said Frank Drum well knew at the time that said representations were false and untrue and that said check would not be paid," etc.

The defendant filed a motion to quash the information, which motion was overruled. On the same day the case proceeded to trial. Humphrey Gaines, the prosecuting witness, testified that Drum came to his house on October 7, 1912, and wanted cattle. An agreement was reached between the two that Gaines would sell to Drum 48 head of cattle for $1,200. In driving the cattle to the town of Elsinor one heifer was lost, and Gaines knocked off $25, leaving the purchase price for the remaining cattle $1,175. He said to Drum, "I am to have the money," to which Drum replied, "You will get your money; you needn't be scared."

They drove the cattle into the town of Elsinor, where defendant wrote a check on the Williamsville State Bank, located at Williamsville, Mo., payable to Gaines, for $1,175. Gaines testified that he did not notice the check, and thought it was on the Elsinor bank. He stepped into that bank and asked Mr. Massey, cashier, if the check would be good. Massey replied, "Yes; it's as good as gold." Witness then said he would deposit the amount, which he accordingly did, and it was placed to his account in the Elsinor bank. Mr. Massey said to him, "Now, the bank owes you $1,175." The check was not paid by the Williamsville bank, but returned protested, and the amount charged back to Gaines by the Elsinor bank. When he presented a check for his money at that bank, payment was refused because he had no funds.

Gaines testified that he would not have turned over the cattle if Mr. Massey had told him the check was on the Williamsville Bank, and he (Massey) did not know whether it would be good when it got around. He said he thought Drum was pretty good when Massey told him so, and he thought he got his money because of what Massey said; that he would not have turned the cattle over unless Massey had told him he had the money.

Jesse Gunn, a witness for the state, testified that he was deputy sheriff in October, 1912, and that a warrant was delivered to him in his capacity as deputy sheriff for the arrest of Frank Drum; that he went to Leeper, where Drum lived, to arrest him; that he left Drum on the latter's promise to raise the money in three or four days; that he afterwards went back to Drum and found him in bed; that Drum "left home one night" and witness did not know where he went. This departure of Drum, witness stated, was five, six, seven, or eight weeks after he had been there. Witness remembered something about a deed of trust given by Drum to Gaines in connection with the matter.

The state also offered in evidence the check for $1,175, with the notice of protest, dated October 8, 1912. Defendant filed a demurrer to the evidence, which demurrer was overruled. On this evidence the cause was...