State v. Hartman

• Decision Date: 08 November 1954
• Docket Number: No. 44051,44051
• Citation: 273 S.W.2d 198,364 Mo. 1109
• Parties: STATE of Missouri, Respondent, v. Evelyn HARTMAN, Appellant.
• Court: Missouri Supreme Court

Page 198

273 S.W.2d 198

364 Mo. 1109

STATE of Missouri, Respondent, v. Evelyn HARTMAN, Appellant.

No. 44051.

Supreme Court of Missouri, En Banc.

Nov. 8, 1954.

Morris A. Shenker, Sidney M. Glazer, Mark M. Hennelly, St. Louis, for appellant.

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

BOHLING, Commissioner.

Evelyn Hartman appeals from a judgment imposing a sentence of imprisonment for three years for feloniously obtaining property by means of a false and bogus check. Sec. 561.450, RSMo 1949. (Statutory references are to RSMo 1949 and V.A.M.S. unless otherwise indicated.) She questions the validity of the information, the sufficiency of the evidence and the admissibility of certain testimony, the main instruction, the verdict and the sustaining of an objection to her counsel's argument.

Max Zimmer, a baker by trade, was the sole owner of the Taylor Pastry Shop in St. Louis, Missouri. Mr. Zimmer testified that he had seen defendant in his place of business several times, three or four, and thought she lived in the neighborhood. About 10:00 a. m., March 15, 1951, defendant came in and ordered merchandise from a clerk in the amount of about $4.00. His clerk came to him in the rear of the establishment with a check. He went to the front of the store and talked to defendant, and cashed the check, giving deferdant the merchandise and $31 and some cents in cash. The three were the only ones in his place of business. We set forth the check (exhibit No. 1):

'St. Louis Shoe Mfg. Co.

889 299

March 1 1951

First National Bank of St. Louis, Mo.

Pay to Nora Redman or order $35.92 Dollars

Thirty Five Dollars Ninety Two Cents

For Value Received, I represent the above amount is on deposit in said bank or trust company, in my name, is free from claims and is subject to this check.

(Gibsons 1204) Pay Check

Sign Here Wm. Buacere

Address ________

The check has the endorsements: 'Nora Redman, 4619 Delmar Bl.' and 'Max Zimmer, 518 N. Taylor.' Mr. Zimmer deposited the check but it was returned to him and he never received credit for it.

The State also introduced the following evidence. On March 14, 1951, defendant obtained from Clarence Spaeth merchandise and cash on a like check (exhibit No. 2), signed 'Wm. Rederd,' in the amount of $35.92. Upon Mr. Spaeth hesitating to accept the check, defendant said: 'Why not? The check is made out by the St. Louis Shoe Manufacturing Company and you know where they are.' Defendant, on May 11, 1951, also obtained from Mrs. Pauline Logaglio merchandise and cash, upon asking Mrs. Logaglio to cash 'her payroll check,' (exhibit No. 3) in the amount of $35.93. Mr. Spaeth and Mrs. Logaglio deposited their respective check but neither received credit therefor.

Earl B. Barnard, an employee of the First National Bank, testified that at one time he, as an employee of the bank, had possession of exhibits 1, 2, and 3, and that the bank refused to pay the checks because it had no account to charge them against.

Harold Tober testified that he was secretary for the St. Louis Shoe Manufacturing Company and had charge of its books and records; that exhibits 1, 2, and 3 were not checks of that company; that they did not have an employee by the name of Nora Redman or any employee named Buacere or Rederd; and that only his brother and he were authorized to sign checks for the St. Louis Shoe Manufacturing Company.

Defendant contends the information is bad for duplicity in that it commingled in one count charges under the different statutes hereinafter mentioned, and her motion to dismiss, 42 V.A.M.S. Sup.Ct.R. 25.05, should have been sustained.

The information in one count charged in substance that Evelyn Hartman, on March 15, 1951, at St. Louis, feloniously et cetera, with intent to cheat and defraud Max Zimmer, did falsely pretend and represent to the said Max Zimmer that she was one Nora Redman, which name appeared as payee of a certain false and bogus check purporting to be a payroll check of the St. Louis Shoe Manufacturing Company, setting forth a copy of the check; and that Evelyn Hartman, further falsely pretended and represented that the said false and bogus check was a genuine payroll check of the St. Louis Shoe Manufacturing Company, and that Max Zimmer, relying upon and believing said false representations and pretenses, and being deceived thereby, was induced to and did pay and deliver to Evelyn Hartman $31.33 in cash and merchandise of the value of $4.59, coupled with allegations negativing the truth of said representations and pretenses and the genuineness of said check.

The only allegations referred to in defendant's brief--no allegations are distinctly specified in defendant's motion to dismiss, Sec. 545.220, Sup.Ct.R. 25.06, or defendant's motion for new trial, Sec. 547.030--are that defendant on March 15, 1951, with felonious intent to cheat and defraud Max Zimmer, (1) did falsely pretend and represent that she was Nora Redman, whose name appeared as payee of a certain false and bogus check purporting to be a payroll check of the St. Louis Shoe Manufacturing Company, and (2) did further pretend and represent that the false and bogus check was a genuine payroll check of said St. Louis Shoe Manufacturing Company; and that, relying upon the false representations and believing them to be true, Max Zimmer was induced to pay over to defendant the money and merchandise.

Some elements of the offenses defined in Sec. 561.450 are, as defendant states, also common to independent offenses under other statutory enactments. We think, taking the information as a whole, it does not charge defendant with the offense of uttering a forged or counterfeit check, knowing the same to be forged or counterfeited, with intent to have the same passed, Sec. 561.090; or with the misdemeanor of making, drawing, uttering or delivering, such intent to defraud, a check upon a bank, knowing that the maker or drawer did not have sufficient funds to his credit for its payment in full, Sec. 561.460.

The principal contention in defendant's brief is that the information charges offenses under Secs. 561.370 and 561.450. The pertinent portions of said sections read:

Sec. 561.370: 'Every person who, with intent to cheat or defraud another, shall designedly, by color of any false token or writing or by any other false pretense, * * * obtain from any person any money, personal property, * * * or effects whatsoever * * * shall upon conviction' be punished as for feloniously stealing such property.

Sec. 561.450: 'Every person who, with the intent to cheat and defraud, shall obtain or attempt to obtain, from any other person, or persons, any money, property or valuable thing whatever by means or by use of any trick or deception, or false and fraudulent representation, or statement or pretense, or by any other means or instrument or device, commonly called 'the confidence game,' or by means or by use, of any false or bogus check' shall be deemed guilty of a felony and upon conviction punished by imprisonment for two to seven years.

Defendant stresses observations in State v. Griggs, 361 Mo. 758, 236 S.W.2d 588, 589, which support her position. Griggs was prosecuted for giving a check "with intent to cheat and defraud, on a bank in which the drawer of the check knows he has no funds", the provision of Sec. 561.450 immediately following the last quoted provision supra of said section. Griggs merely gave the check and did not make any verbal representations at the time. 236 S.W.2d loc. cit. 590. However, the information additionally charged that he 'did then and there * * * feloniously represent and pretend that he had an account in said bank and that said check would be paid * * *.' Id., 236 S.W.2d loc. cit. 589, 590. The court stated, Id., 236 S.W.2d loc. cit. 592, the information was duplicitous for commingling allegations in a single count charging a crime under Sec. 561.370 and Sec. 561.450. The court held that the State's main instruction in the Griggs' case was prejudicially erroneous because it failed to require a finding 'that defendant knew he had no funds in the bank on which the check was drawn.' Id., 236 S.W.2d loc. cit. 592[6, 7]. For reasons presently to be developed the observations in State v. Griggs with respect to the information should not be followed so far as they conflict herewith.

Section 561.370, so far as involved, first appeared in 1 Terr.Laws, p. 216, Sec. 29, R.S.1825, p. 290, Sec. 38, and Sec. 561.450 in Laws 1879, p. 88. They define cognate offenses, and this was recognized by the General Assembly. The title to the act of 1879 read: 'An Act to punish cheats, frauds, tricks, deceptions, false and fraudulent representations, statements, false pretenses, confidence games, and using and passing false and bogus checks, instruments, coins and metals.' The act carried an emergency clause and Sec. 2 thereof set forth a form of indictment under Sec. 1, which the General Assembly stated was to be 'held a sufficient description of the offense,' and which purported to embrace all of the several prohibited acts set forth in Sec. 1. The early cases considered an indictment conforming to Sec. 2 of the act sufficient, State v. Fancher, 71 Mo. 460, 463(2); but later cases held Sec. 2 unconstitutional and indictments merely conforming thereto invalid, State v. Cameron, 117 Mo. 371, 376, 22 S.W. 1024, 1025; State v. Fleming, 117 Mo. 377, 378, 22 S.W. 1024.

It is apparent from the title and also from the wording of Sec. 1 of the act, Laws 1879, supra, now Sec. 561.450, that the General Assembly defined a 'felony' which might be committed by the doing of any of the several prohibited acts therein set forth. So far as here material it may be committed 'by means or by use of any * * * false and fraudulent representation, or statement or pretense, * * * or by means or by use, of any false or bogus check * * *.' The issue falls within the rule of criminal procedure that an...