State v. Gregory

• Decision Date: 16 December 1902
• Parties: STATE v. GREGORY.
• Court: Missouri Supreme Court

71 S.W. 170

170 Mo. 598

STATE v. GREGORY.

Supreme Court of Missouri, Division No. 2.

December 16, 1902.

CRIMINAL LAW—CONTRACTORS—DEFRAUDING MATERIALMEN — CLASS LEGISLATION — EVIDENCE —INSTRUCTION—APPEAL — RECORD — HARMLESS ERROR.

1. Rev. St. 1899, § 4226, providing that a contractor who purchases materials on credit, then representing that it is to be used in a certain building, and thereafter uses it in another building, without the written consent of the seller of the material, with intent to defraud him, shall be guilty of a misdemeanor, is not unconstitutional as class legislation.

2. Testimony of one indicted under Rev. St. 1899, § 4226 (providing that a contractor who purchases materials on credit, then representing that it is to be used in a certain building, and thereafter uses it in another building, without the written consent of the seller of the material, with intent to defraud him, shall be punished, etc.), that of the 20,000 laths ordered for two houses only 11,000 went into it, establishes an intent to do the specific thing which the statute forbids, notwithstanding his testimony that he had no intent to steal or defraud, the pretense that the 9,000 were a mere remnant left over, which according to custom the contractor may remove to another building being without merit.

3. Failure to instruct as to the presumption of innocence is not open to review, the court having instructed that the jury must acquit unless they found defendant guilty beyond a reasonable doubt, and he having neither prayed the court to instruct on all questions of law nor saved any exception to its failure to do so.

4. Failure of the court to define in its instructions the simple words "falsely" and "fraudulently" is proper.

5. Where two witnesses had, without objection, given testimony to prove that defendant had a system of buying materials largely in excess of the amount needed to complete his contracts, and then removing the excess, admission of the testimony of another witness to the same effect, after which the court promptly ruled out the testimony of all the witnesses, stating that it did not show any such systematic fraud as to justify it, is harmless.

Appeal from criminal court, Jackson county; Jno. W. Wofford, Judge.

P. G. Gregory was convicted of defrauding, and appealed to the court of appeals, from which the case is transferred to the supreme court. Affirmed.

J. H. McVay, for appellant. H. S. Hadley, C. E. Burnam, and Frank G. Johnson, for the State.

GANTT, J.

This is a prosecution under section 4226, Rev. St. 1899, which is in these words: "Sec. 4226. Contractor defrauding guilty of a misdemeanor. Any contractor, or sub-contractor who shall purchase materials on credit, and represent at the time of purchase that the same are to be used in a designated building or other improvement, and shall thereafter use, or cause to be used, the said materials in the construction of any building or improvement other than that designated, without the written consent of the person from whom the materials were so purchased, with intent to defraud such person, shall be deemed guilty of a misdemeanor and, on conviction, shall be punished by fine not exceeding five hundred dollars." Although the offense is made a misdemeanor only, jurisdiction of this appeal is conferred on this court, because the constitutionality of said section was duly challenged by the motion to quash the indictment, and, the criminal court having overruled the same, an exception was duly saved, and the motion and exception incorporated in the bill of exceptions. The indictment was returned at the January term, 1900, and the defendant was tried and convicted on the 18th of February, 1901. The record was filed in Kansas City court of appeals September 14, 1901, and by that court transferred to this court and lodged in the clerk's office too late to be heard at the April term of this year. The indictment, in substance, charges that defendant, Gregory, on the 20th day of March, 1899, was then and there in Jackson county a contractor, and then and there had a contract with one Lewis M. Rowland, the owner of certain premises known as No. 4030 East Seventh street, in Kansas City, Jackson county, Mo., to furnish materials and to do work on the construction of a building at said No. 4030 East Seventh street, and did then and there purchase materials, to wit, 200 bunches of W. P. lath of the value of $25, 10 pieces of 2×10-12 # 1 Y. P. of the value of $3.40, and 5 pieces 1/12-16 2 W. P. of the value of $1.68, on credit, from the Current River Lumber Company, a corporation, and did then and there unlawfully, falsely, and fraudulently represent to the said Current River Lumber Company, at the time of said purchase, that the said materials were to be used in the said building at No. 4030 East Seventh street; and thereafter he, the said Gregory, did unlawfully and fraudulently use and cause to be used the said materials in the construction of a building and improvement other than the designated building at No. 4030 East Seventh street, without having first obtained the written consent of the said Current River Lumber Company, from whom said materials were purchased, to so use the said materials on such other buildings, with the intent to defraud the said lumber company of said materials; against the peace and dignity of the state. There was evidence tending to prove the charges in the indictment sufficient to require the case to be submitted to the jury. Various errors are specified, and we proceed to dispose of them.

1. The chief point is that the act is unconstitutional, because it is class legislation, and denies the defendant the equal protection of the laws, and imposes upon a building contractor penalties not imposed upon other persons in like situations. That laws which give mechanics, contractors, and materialmen liens on the buildings upon which they work and for the construction of which they furnish materials are constitutional, has been decided in a great many well-reasoned cases. It was so held at an early day in this state. Dubois' Adm'r v. Wilson's Trustee, 21 Mo. 214. See, also, Kellogg v. Howes, 81 Cal. 170, 22 Pac. 509, 6 L. R. A. 588; Hart v. Railroad Co., 121 Mass. 510; Shaw v. Bradley, 59 Mich. 204, 26 N. W. 331; Glacius v. Black, 67 N. Y. 563; Manufacturing Co. v. Falls, 90 Tenn. 466, 16 S. W. 1045; Purtell v. Bolt Co., 74 Wis. 132, 42 N. W. 265. Such laws have been held not to deprive persons of their property without due process of law, and are not class legislation. Quale v. Moon, 48 Cal. 478; Summerlin v. Thompson, 31 Fla. 369, 12 South. 667; Warren v. Sohn, 112 Ind. 213, 13 N. E. 863; Virginia Development Co. v. Crozer Iron Co., 90 Va. 126, 17 S. E....