State v. Green

• Decision Date: 14 October 1957
• Docket Number: No. 2,No. 45637,45637,2
• Citation: 305 S.W.2d 863
• Parties: STATE of Missouri, Respondent, v. John W. GREEN, Appellant
• Court: Missouri Supreme Court

Page 863

305 S.W.2d 863

STATE of Missouri, Respondent, v. John W. GREEN, Appellant.

No. 45637.

Supreme Court of Missouri, Division No. 2.

Oct. 14, 1957.

David M. Grant, St. Louis, for appellant.

John M. Dalton, Atty. Gen., Donal D. Guffey, Asst. Atty. Gen., for respondent.

EAGER, Judge.

Defendant was indicted in the City of St. Louis for procuring money from one Beatrice Mosley by false pretenses and representations; more specifically it was charged that he represented to her that he had influence with the members of the Board of Probation and Parole, and that he would, by using such influence, secure a parole for her husband, Edward Mosley, who was then in the penitentiary; also that, being so deceived, she paid him $600, of which $100 was alleged to have been paid in cash, and $500 in postal money orders. At the time of the alleged offense, in 1952, defendant was a member of the Missouri Legislature. The indictment was filed on September 7,1954. Defendant was arraigned, and through counsel, filed a motion to dismiss the indictment; the record shows that this motion was argued and taken under advisement; no ruling is shown, and for our purposes, we may assume that there was no ruling. On November 24, 1954, the state, by leave of court, filed an information in lieu of the indictment; in substance, this changed the date (or dates) alleged from 'between the first day of August, 1952, and the 31st day of August, 1952,' to 'on the 15th day of November,' 1952, added the words 'and could' after the word 'would' in defendant's representation of future action, changed the amount alleged to have been paid from $600 to $100, but set out verbatim (following the allegation of payment) five-$100 money orders. On January 14, 1955, a motion to dismiss this information was overruled. Sundry continuances followed (and preceded) that ruling; when the case was finally called for trial on January 9, 1956, the state, again by leave of court, amended the information by interlineation, and shortly thereafter rewrote it to conform to the interlineations; thereupon defendant renewed and refiled his motion to dismiss the information and that motion was then overruled. The trial proceeded, but on the next morning a mistrial was declared because of certain publicity in a St. Louis newspaper.

The trial from which this appeal resulted began on February 6, 1956. On the next day the jury returned a verdict of guilty and assessed defendant's punishment at a fine of $1,000. This court has jurisdiction because a conviction under section 561.370 (all citations are to RSMo and V.A.M.S.) is a felony, although it provides, by reference, for graded punishments. A timely motion for new trial was filed and overruled, allocution granted, and sentence imposed.

Beatrice Mosley, the complaining witness, testified in substance: that she went to see defendant at his mother's home in St. Louis early one Saturday evening, she having just returned from Jefferson City; that she waited about an hour, and when defendant came he took her into the kitchen so they could talk privately; that she told the defendant that she 'was to leave $100.00 with him for a payment to secure a parole for Edward by Christmas, and the amount of money was to be $500.00'; that, however, defendant told her 'it would be $600.00 * * * because he had to divide it between the men on the parole board'; that she gave defendant $100 in cash, of her money, probably in two $50 bills, and asked for a receipt; that defendant declined to give her a receipt, and offered the money back, but she told him to keep it and that she would send the rest when she got back to Columbus, Ohio, where she lived and worked; that defendant gave her a specific St. Louis address to which the rest of the money should be sent; that she had never seen the defendant previously. She further testified: that 'he said he had to divide the money between the men on the parole board, that is what he told me, and he would need $600.00 to do this with'; that neither she nor her husband owed defendant any money. Over defendant's objections the court permitted her to testify that after she returned to Columbus, and on November 28, 1952, she purchased and mailed to defendant by registered mail to the address designated, five $100 postal money orders; in so testifying, she identified her original receipts, photostats of the money orders, and the registry return receipt which she received; all of these exhibits were offered and received in evidence. Thereafter she heard nothing from the defendant. On cross-examination this witness testified that she 'sought out' defendant and found him; on redirect she stated that defendant said that 'as soon as I got him the money he would be able to secure the parole for me,' and that defendant told her that he had talked with her husband. This witness had completed a high school education in Chattanooga, Tennessee.

The Executive Secretary of the Board of Pardon and Parole testified: that a parole could not be purchased; that Edward Mosley was discharged by commutation of sentence on May 4, 1955, and was not paroled that Mosley did make applications for parole, first on June 9, 1953, and later about January 13, 1954; that in January, 1953, the original hearing date for a parole was advanced from January, 1954, to July 19, 1953 'by request of Representative Green of St. Louis'; and that it was not unusual for legislators to make inquiry concerning the parole status of inmates of the penitentiary.

Sergeant H. H. Schaperkotter of the Missouri Highway Patrol testified that he and another member of the Patrol, Lieut. Barton, interviewed defendant in St. Louis on January 17, 1954. He further testified: that they told defendant they had information that he had taken $600 in the matter of a parole for Edward Mosley, Jr.; that defendant did not deny the receipt of the money but gave three conflicting versions of his reasons for taking it; first, that the money had nothing to do with a parole; second, that it was received in a parole matter, that he gave the money to an unidentified attorney who was 'to work for Mosley in regard to a parole,' that he, defendant, got part of it back for his own use, and the rest 'went to several different people' but that he 'didn't rat on other people'; and third, that 'his story would be that he did receive the $600.00, but that it was in payment of a debt owed him by Mosley and his family.' This witness also related certain miscellaneous and somewhat rambling statements volunteered by the defendant, some of which will be referred to later. He testified also: that defendant was told that the witness had been investigating parole matters for three or four months; that in fact he was then assigned to an investigation of the whole parole system and personnel; that the defendant was a member of a legislative committee on Probation and Parole; that this particular case was referred to the witness by the Chairman of the Parole Board, and that he saw a notation on the jacket that defendant had been in the office.

Edward D. Mosley, Sr. testified: that he had long known the defendant; that in January, 1954, the defendant came to see him and 'he told me about this money, that the law was in behind him about the money, and he would like for me to help him out * * *'; that defendant suggested that he '* * * go down to Jefferson City and talk to the boy and say he borrowed the money from him.' This witness told the defendant that he would go, but in fact he did not.

The evidence for defendant consisted largely of character evidence and his own testimony; it is unnecessary to recite this in any detail for it cannot be considered here on the sufficiency of the state's case. It will suffice to say that the substance of defendant's testimony was: that Beatrice Mosley looked him up voluntarily and offered him money to help her to get her husband released; that he did not tell her that he had influence with the Parole Board and that he could get her husband a parole, and, in substance, that he made her no promises; that he went to see Edward Mosley, told the latter that his wife had paid him $100 and promised to send him $500, that he talked to a member of the Parole Board, contacted the Board several times, assisted in having the date of a parole hearing advanced and in getting the prisoner transferred to the Church (prison) farm, and that he attended a parole hearing. His theory was, in short, that he took the money with honest intentions and that he was merely to do what he could toward getting a parole for Mosley. The jury found otherwise. Defendant admitted that he had seen and talked to Mosley in the penitentiary some time before Mosley's wife came to see him, and that he had then talked with Mosley about a parole; he testified that the $600 was not for 'expenses,' but when asked specifically 'what was the purpose' of the payment, his answer merely was 'Well, I was going to--after I received the money I went to Mr. Grant and discussed it with him about the case.' He also stated that he kept the money. Mr. Grant, defendant's counsel, testified that in the course of a visit and general conversation, the defendant mentioned incidentally that he might need Grant's services in a parole matter. We omit much evidence which could only be material for its effect upon the jury; we are not concerned with that here. Motions for a judgment of acquittal were filed at the close of the state's case and at the close of the whole case. Both were overruled.

The respondent filed here its motion to dismiss the appeal because of the insufficiency of the transcript, particularly for the failure to include therein various orders of record, the motion for new trial, and the ruling thereon. The transcript as filed was wholly insufficient, but this court, by its order, permitted the appellant to supplement it; as thus supplemented, we hold it sufficient and overrule the motion to dismiss,...