State v. Foley

• Decision Date: 19 February 1913
• Citation: 153 S.W. 1010
• Parties: STATE v. FOLEY.
• Court: Missouri Supreme Court

153 S.W. 1010

STATE v. FOLEY.

Supreme Court of Missouri, Division No. 2.

February 19, 1913.

1. CRIMINAL LAW (§ 1063) — APPEAL — OBJECTION BELOW — SUFFICIENCY — INDICTMENT.

The sufficiency of an indictment made part of the record was reviewable, though no motion in arrest was filed.

2. CRIMINAL LAW (§ 1064) — APPEAL AND ERROR — RECORD — SCOPE OF REVIEW.

The Supreme Court need not, even in a criminal case, go outside the assignments of error contained in the motion for a new trial to review matters of pure exception, not contained in the record proper.

3. FALSE PRETENSES (§ 37) — INDICTMENT — SUFFICIENCY.

An indictment, charging that defendant, while a city light inspector, "unlawfully, feloniously, * * * with intent to cheat, * * * did falsely * * * represent to the city, * * * its officers, * * * that * * * defendant owned a horse and buggy, * * * used the same in the city's service, * * * that he was entitled to * * * receive from said city * * * the sum of $20 for furnishing a horse, * * * that the city, its officers, * * * believing said false pretenses, * * * did then and there pay over * * * $20 lawful money, * * *" was sufficient to charge the statutory offense of obtaining money by false pretenses.

4. FALSE PRETENSES (§ 37) — INDICTMENT — SUFFICIENCY.

An indictment against a city light inspector for obtaining money from the city by false pretenses was not defective for failure to set up the city ordinance under which he held office, and by virtue of which he was put in a position to carry out the fraud alleged, since Rev. St. 1909, § 4565, under which the prosecution was had, covers false pretenses of all persons, and not merely of public officers.

5. FALSE PRETENSES (§ 37) — INDICTMENT — SUFFICIENCY.

An indictment against a city inspector for obtaining money from the city by falsely representing to the city officers that he owned a horse and buggy, and had used the same for the city's service during a certain month, was not objectionable because the things misrepresented were necessarily fully within the knowledge of the city officers alleged to have been deceived, where these things could have become known to them only through careful investigation; it not being a condition precedent to a prosecution for false pretense that the victim shall have made an investigation before parting with his property.

6. CRIMINAL LAW (§ 1159) — APPEAL — SUFFICIENCY OF EVIDENCE.

Where there was substantial proof that defendant was guilty of obtaining money by false pretenses, the Supreme Court could not review the sufficiency of the evidence to sustain a conviction.

7. CRIMINAL LAW (§ 200) — FORMER JEOPARDY — DISMISSAL OF COUNT — EFFECT.

The dismissal of a count of an indictment, which charged defendant with obtaining by false pretenses "a warrant of the value of $20" did not operate as an acquittal on a remaining count, which charged him with obtaining "$20 lawful money of the United States."

8. CRIMINAL LAW (§ 1032) — APPEAL — NECESSITY OF OBJECTION BELOW — VARIANCE.

Under Rev. St. 1909, § 5114, which requires that matters of variance shall be called to the attention of the trial court, an objection that the indictment charged defendant with obtaining money from a city by false pretenses, while the proof showed that he obtained a city warrant, could not be reviewed when made for the first time in defendant's brief, especially where the evidence showed that defendant's rights were not prejudiced by the variance.

9. CRIMINAL LAW (§ 371) — EVIDENCE — OTHER OFFENSES.

In a prosecution for obtaining money from a city under the false pretense that the defendant had used a horse and buggy in the city's service during a certain month, evidence of like fraudulent payments obtained for other months was admissible to show the intent with which the act charged was done.

10. CRIMINAL LAW (§ 1170½) — APPEAL — HARMLESS ERROR — CROSS-EXAMINATION OF DEFENDANT.

Error, if any, in cross-examining defendant outside his examination in chief, was harmless, where the matter on which he was cross-examined was shown by testimony of the state's witnesses and by defendant's signed confession, which he was given an opportunity to explain.

11. WITNESSES (§ 277) — DEFENDANT AS A WITNESS — CROSS-EXAMINATION.

Where, on the direct examination of defendant as a witness, his counsel asked him as to matters occurring at the time of his making a confession, "What occurred up there," and defendant told a part of what occurred, it was not error to permit him to be asked on cross-examination concerning other matters which then occurred.

12. FALSE PRETENSES (§ 52) — INSTRUCTION.

Where, in the prosecution of a city light inspector for obtaining money through a false certificate admittedly filed with the city and reading, "I hereby certify that I own a horse and buggy and that I have used the same for the city's service during the month of September," the court instructed that defendant was not required to own the horse and buggy but simply to provide same, it was not error to instruct, in the language of defendant's certificate, that the false representation charged consisted in defendant's statement "that he owned a horse and buggy and had used the

same in the city's service during the month of September."

Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.

Richard Foley was convicted of obtaining money by false pretenses, and he appeals. Affirmed.

Defendant was convicted in the circuit court of the city of St. Louis on the second count of an indictment charging him with obtaining money from the city of St. Louis by certain false pretenses, and his punishment fixed by the verdict of a jury at imprisonment in the penitentiary for a term of two years. From the judgment and sentence imposed pursuant to said verdict, after the usual steps, he prosecutes this appeal.

The indictment against the defendant contains two counts; but, the state having seen fit at some stage in the trial (but at what period is not clearly disclosed) to dismiss as to the first count, the same is not pertinent here, except in so far as it may incidentally bear upon matters of alleged error urged by defendant.

The second count, being that upon which the conviction was had, is as follows (caption omitted): "And the grand jurors aforesaid, upon their oath aforesaid, further presentment make as follows: That Richard Foley on or about the 30th day of September, 1910, at the city of St. Louis aforesaid, was an inspector of city lighting, duly appointed and qualified and acting under and by virtue of the laws and ordinances of the city of St. Louis, a municipal corporation; and that the said Richard Foley, inspector as aforesaid, on or about the said 30th day of September, 1910, at the city of St. Louis aforesaid, unlawfully and feloniously, knowingly, and designedly, with the intent then and there to cheat and defraud the city of St. Louis, a municipal corporation as aforesaid, did falsely and fraudulently represent, pretend, and state to the said city of St. Louis, its officers, agents, and servants, that he, the said Richard Foley, inspector as aforesaid, owned a horse and buggy and had used the same in the city's service during the month of September, 1910; and that the said city of St. Louis was then and there justly indebted to him, the said Richard Foley, inspector as aforesaid, in the sum of $20 for furnishing and keeping a horse and buggy, which he, the said Richard Foley, as such inspector used in the said city of St. Louis in performing his duties during the said month of September, 1910; and that he, the said Richard Foley, inspector as aforesaid, was then and there entitled to receive and have from the said city of St. Louis the sum of $20 for furnishing and keeping a horse and buggy used by the said Richard Foley, inspector as aforesaid, in the performance of his duties as such inspector in said city of St. Louis during the month of September, 1910; and that the said city of St. Louis, its officers, agents and servants, believing the said false pretenses and representations so made by the said Richard Foley as aforesaid, to be true, and being deceived thereby, was then and there induced by the said false representations and pretenses so made as aforesaid, to pay over and deliver to the said Richard Foley, inspector as aforesaid, and did then and there pay over and deliver to the said Richard Foley, inspector as aforesaid, certain personal property, to wit, $20 lawful money of the United States, in full payment and in discharge of said indebtedness of $20 represented as aforesaid to be due and owing by said city of St. Louis to the said Richard Foley, inspector as aforesaid, and described as aforesaid; and that the said Richard Foley, inspector as aforesaid, by means of the said false pretenses and representations so made to the said city of St. Louis as aforesaid, unlawfully, feloniously, knowingly, and designedly did then and there obtain of and from the city of St. Louis said $20 lawful money of the United States, of the personal property of the said city of St. Louis, and of the value of $20, with the intent then and there the said city of St. Louis to cheat and defraud of the same. Whereas, in truth and in fact the said Richard Foley, inspector as aforesaid, did not on or about the 30th day of September, 1910, own a horse and buggy and did not use the same in the city's service during the month of September, 1910; and whereas, in truth and in fact the said city of St. Louis was not then and there justly indebted to him, the said Richard Foley, inspector as aforesaid, in the sum of $20 for furnishing and keeping a horse and buggy, which he, the said Richard Foley, as such inspector, used in said city of St. Louis in performing his duties during said month of September, 1910; and whereas, in truth and in fact the said Richard Foley, inspector as aforesaid, was not then and there entitled to receive and have from the said city of St....