State v. Ellis, 37883.
| Decision Date | 13 March 1942 |
| Docket Number | No. 37883.,37883. |
| Citation | 159 S.W.2d 675 |
| Parties | STATE v. ELLIS. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Christian County; Robert L. Gideon, Judge.
L. K. Ellis was convicted for making, executing and delivering a warranty deed to lands on which there was an outstanding mortgage, previously executed by defendant, without reciting or describing in the warranty deed such former mortgage, or the substance thereof, with intent to defraud, and he appeals.
Affirmed.
Omer E. Brown, of Ozark, and Wm. L. Vandeventer, of Springfield, for appellant.
Roy McKittrick, Atty. Gen., and Tyre W. Burton, Asst. Atty. Gen., for respondent.
The conviction in this case was under what is now Section 4491, R.S.1939, § 4099, Mo.St.Ann. p. 2899, for making, executing and delivering a warranty deed to lands on which there was an outstanding mortgage, previously executed by defendant, without reciting or describing in said warranty deed such former mortgage, or the substance thereof, with intent to defraud. The jury assessed the punishment at a fine of $200. The case was here on a former appeal which was held to be premature, resulting in remand with directions to grant allocution. State v. Ellis, 119 S.W.2d 271. After unprecedented delay, the directions of our mandate were carried out on May 26, 1941, defendant was sentenced in accordance with the verdict, and he appealed. The offense is made a felony by the statute, hence jurisdiction of the appeal is in this court.
Defendant's brief says expressly that there was only one element of the alleged defense that was not admitted, i. e., that of intent to defraud. The errors assigned are: (1) That there was no evidence of a fraudulent intent on the part of defendant, and for that reason the court erred in submitting the case to the jury; (2) that the court erred in giving instruction No. 1; and (3) that the court erred in giving instruction No. 2. But the state's brief takes the position, upon the authority of several cases, that none of these questions is properly before us for review because not preserved in the motion for new trial. Nothing has been filed in reply. As to the first assignment, it may be said that the defendant did not offer a demurrer to the evidence at the close of the state's case, nor at the close of the whole case. This failure would not foreclose his right to have determined the question as to whether there was any substantial evidence to support the verdict, if properly...
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State v. Foster
... ... that it was in fact aroused. State v. Robinson, 185 ... S.W.2d 636; State v. Ellis, 70 Mo. 207; State v ... Vansant, 80 Mo. 67; State v. Heath, 221 Mo ... 565, 121 S.W. 149; State v. Connor, 252 S.W. 713; ... State v ... ...
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... ... that it was in fact aroused. State v. Robinson, 185 ... S.W.2d 636; State v. Ellis, 70 Mo. 207; State v ... Vansant, 80 Mo. 67; State v. Heath, 221 Mo ... 565, 121 S.W. 149; State v. Connor, 252 S.W. 713; ... State v ... ...
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... ... R.S.A.; State v. Dollarhide, 87 S.W.2d 156, 337 ... Mo. 962; State v. Kaner, 93 S.W.2d 671; State v ... Foster, 197 S.W.2d 313; State v. Ellis, 159 ... S.W.2d 675; State v. Bolhofner, 82 S.W.2d 874, 336 ... Mo. 1155; State v. McGee, 83 S.W.2d 98, 326 Mo ... 1082; State v. Solan, 207 S.W ... ...
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State v. Burnett
...verdict, if such question had been properly raised in the motion for a new trial, but the matter has not been raised. State v. Ellis, Mo.Sup., 159 S.W.2d 675, 676(2); State v. Clark, 353 Mo. 470, 182 S.W.2d 619, 622(6). However, on this record the evidence, as we shall see, was amply suffic......