State v. Ferris

• Decision Date: 02 March 1929
• Docket Number: No. 29428.,29428.
• Citation: 16 S.W.2d 96
• Parties: THE STATE v. ALLEN V. FERRIS, Appellant.
• Court: Missouri Supreme Court

16 S.W.2d 96

THE STATE v. ALLEN V. FERRIS, Appellant.

No. 29428.

Supreme Court of Missouri, Division Two.

March 2, 1929.

Appeal from Jasper Circuit Court. — Hon. Grant Emerson, Judge.

AFFIRMED.

Foulke & Foulke for appellant.

(1) The information is improper in form and fails to set out all the elements constituting the offense. It does not allege that the mortgage was in force or effect, does not inform who was the owner of the mortgage at the time of the alleged offense or that it had ever been assigned, and does not inform defendant whose consent is necessary to constitute a defense to the alleged offense. Sherwood's Comm. on Criminal Law of Missouri, p. 288; State v. Ferguson, 152 Mo. 92; State v. Gassard, 103 Mo. 143; State v. Reagan, 77 S.W. 1135. Where there are degrees of an offense depending upon the value of the subject-matter, then the value must be set out in the information. State v. Pedigo, 71 Mo. 443. (2) The evidence shows that the defendant had never acquired any interest in the property, and that no assignment of title had been made in conformity with the law of the State of Missouri by the Southwest Overland Knight Company to him and he could not have re-conveyed it, nor could he have executed a valid mortgage back to the said company. Laws 1921, Ext. Sess., pp. 88-89; State ex rel. Conn. Fire Ins. Co. v. Cox (Mo.), 168 S.W. 87. (a) The evidence shows that the mortgage was usurious and that nearly twenty per cent interest was charged, making the mortgage invalid and illegal, and could not be the subject-matter of a prosecution of this sort. Sec. 6496, R.S. 1919. (b) The foundation of the offense is intent to defraud. No evidence to that effect is shown. Another employee, Haley, sold the car without knowledge of sale or the conditions of the sale. There could be no criminal intent where defendant had no knowledge of sale or its conditions. Pinson v. Campbell (Mo. App.), 101 S.W. 621. (c) The evidence fails to show any agency or other service relation between Haley and defendant. They both were company employees of the Southwest Overland Knight Company. Haley could not become the agent of defendant, when the defendant was merely an agent and derived authority from the same principal from which Haley derived his agency and employment, the state witness Haley saying he was not employed by defendant but by the Southwest Overland Knight Co. State v. Chauvin, 231 Mo. 31; State v. Crawford, 151 Mo. App. 402. (d) The evidence is at variance with the information. Any material variance between the proof and the information is fatal. Material variance is ever present through all of the testimony offered. State v. Plant, 209 Mo. 307. (3) Instruction 4 is misleading, does not define the law, and is not based on the evidence. Witness Haley saying he was not employed by the defendant, so then he could not be his agent when rendering services for his employer and that other than defendant. Instructions must not be misleading. Must define the law, and must be based on the evidence. (4) New trial should always be granted when it appears that a juryman had prejudged the case. One of the jurors was heard to say before the trial he thought defendant guilty and expressed vindictive feeling toward him. Where a juror expresses belief in defendant's guilt and does not disclose his feeling in his examination for a juror, he is disqualified. State v. Wyatt, 50 Mo. 309; State v. Gonce, 87 Mo. 627; State v. Taylor, 64 Mo. 358; Kelly's Crim. Law (4 Ed.) sec. 419.

Stratton Shartel, Attorney-General, and L. Cunningham, Assistant Attorney-General, for respondent.

(1) The information is sufficient to charge every element of the crime. Sec. 3348, R.S. 1919. (a) The failure to allege the value of the mortgaged property sold and disposed of does not make the information invalid. Sec. 3908, R.S. 1919. (b) Failure of the record to show a formal arraignment is not reversible error where the parties announce ready for trial and the trial is had in all respects as though the defendant had been arraigned and entered a plea of not guilty. Sec. 3958, p. 196, Laws 1925. (c) Even though the information alleged more than the State was required to prove, it did not prejudice nor harm the defendant. Sec. 3908, R.S. 1919; State v. McConnell, 240 Mo. 269; State v. Prince, 297 S.W. 34. (d) It was not error for the court to permit the prosecuting attorney to amend the information. Sec. 3853, R.S. 1919. (2) The defendant consented to the sale and disposal of the mortgaged Overland sedan. It was made with his approval. (a) The evidence is clear and convincing that the mortgaged Overland sedan was valued at $950 and that a Jewett automobile valued at $450 and five hundred dollars in paper was paid for it by Elmer Covert. (b) The chattel mortgage and note were sold and assigned by the defendant as president of the Southwest Overland Knight Company to the O'Neil Security Company for $749.46. (c) The charge was that defendant did "sell, convey and mortgage and dispose of" the mortgaged property to Elmer Covert. It would not be material to any issue in the case whether he conveyed or transferred valid title to it as required for the conveyance of motor vehicles under the motor vehicle law. The defendant effectively disposed of the mortgaged property. (d) There is no merit in defendant's claim that the State did not prove that the defendant had title to the mortgaged Overland Sedan. He disposed of the mortgaged property whether he had or conveyed valid title or not. The statute concerning the conveyance of motor vehicles and transferring title thereto was enacted to prevent fraud and the conveyance of stolen cars and was not enacted to protect mortgagors from punishment for selling, conveying and disposing of mortgaged property without the written consent of the mortgagee and without informing the person to whom it was sold, conveyed or disposed of that the property was mortgaged because perchance the title was not transferred as required by law. (e) There is no question of the validity of the chattel mortgage and an inspection of the mortgage as offered in evidence is sufficient answer to this part. (f) The mortgage was not usurious. General Motors Corp. v. Wienrich, 262 S.W. 425; Priest v. Garnett, 191 S.W. 1048; Huber Mfg. Co. v. Ellis, 201 S.W. 931. (g) Even if Haley was agent for the corporation, he was also acting for the defendant and with his consent and approval in selling and disposing of the mortgaged property.

WALKER, J.

The defendant was charged by information under Section 3348, Revised Statutes 1919, in the Circuit Court of Jasper County, with having sold mortgaged personal property without the written consent of the mortgagee and without informing the purchaser that the property was mortgaged. Upon a trial to a jury he was convicted and his punishment assessed at two years' imprisonment in the penitentiary. From this judgment he appeals.

The defendant was the president and manager of the Southwest Overland Knight Co., hereinafter referred to as "the corporation." He owned ninety-nine shares of the capital stock of this company; his wife owned twenty shares, and one Belcher owned one share. The company was engaged in the business of selling automobiles. The defendant claimed to personally own an Overland sedan automobile. On January 26, 1926, he gave the corporation his note for $845.46, payable in monthly installments, and to secure the payment of same executed a chattel mortgage to the corporation on the car. On the 30th day of January, 1926, he sold and assigned the note and the chattel mortgage to the O'Neil Security Co. This company was a partnership, composed of Hugh and Newland O'Neil, and they paid the corporation $749.46 for said note and mortgage. Earl Haley, a salesman of the corporation, began negotiations with one Elmer Covert to exchange the mortgaged car for a Jewett car owned by Covert and $500. Haley informed the defendant of the proposed sale and was directed by the latter to make it. He did so. At the time of the sale the defendant was absent in Kansas City. Covert had no knowledge of the note given by the defendant to the O'Neil Security Company, nor of the chattel mortgage on the Overland car given to secure its payment, and was given no information in regard to the same by either Haley or the defendant. Nor did the members of the O'Neil Security Company give their consent, written or otherwise, to the sale. In May, 1926, the corporation became financially involved to the extent that the defendant called a meeting of the creditors and turned the stock books and property of the corporation over to certain trustees. Apprised of this fact the O'Neil Security Company, in taking steps to collect the note due to it by the corporation, discovered that the car, mortgaged to the O'Neil Company to secure the note given to it by the corporation, had been sold and delivered to Covert. After the books and property of the corporation had been turned over to the creditors, the defendant went to El Paso, Texas, where he was subsequently arrested, and brought back for trial, not requiring extradition to be issued to compel his return.

The evidence for the defendant was to the effect that one J.L. Hine was operating a business at Springfield, Missouri, known as the Overland Knight Company, and in the fall of 1925 was the owner of a large number of used automobiles which he sent to Joplin, Missouri, in charge of the defendant; that defendant was in his employ and under his direction and made remittances to him of all money received and that he was paid a salary by Hine. That defendant was instructed by Hine to organize a corporation with the capital stock of $12,000, with himself as president, his wife as secretary and Belcher as treasurer, which stock was to be conveyed to Hine. That the car mortgaged by the defendant to the corporation of which he was president, was sold to Covert in the usual course of business of...