State v. Hollbrook
| Decision Date | 20 December 1926 |
| Docket Number | 26896 |
| Parties | STATE v. HOLLBROOK |
| Court | Missouri Supreme Court |
David W. Peters, of Jefferson City, for appellant
North T. Gentry, Atty. Gen., and W. F. Frank, Asst. Atty. Gen., for the State.
The information was in four counts, and charged appellant and one A. L. Steiner with obtaining money under false pretenses in Cole county. Appellant was granted a severance and, upon his separate trial, was found guilty under the second count of the information and not guilty under counts 1, 3, and 4. The jury assessed his punishment at imprisonment in the penitentiary for a term of two years. From the judgment entered upon such verdict, an appeal was granted to this court.
The information was drawn under section 3343, R. S. 1919. The second count charged that appellant and Steiner feloniously and with intent to cheat and defraud Jones-Dawson Funeral Directors, a corporation, did obtain from said corporation a check for $ 12.50, drawn in their favor, upon a Jefferson City bank and of the value of $ 12.50, which was afterward duly paid. It was alleged that appellant and Steiner made certain false and fraudulent representations to the agents of such corporation, which were believed and relied upon by said agents and which induced them to deliver said check, etc. We will assume, for the purposes of this opinion, that said second count charged an offense under said section 3343.
The jury returned the following verdict:
'We the jury, find the defendant guilty as charged in the second count of the information, and assess his punishment at two years in the penitentiary.'
By instruction 8, the court outlined the facts which, if found by the jury, authorized a verdict of guilty upon the second count. This instruction did not specify the appropriate punishment. By instruction 11 the court told the jury that:
'If you find the defendant guilty, you will assess his punishment at not less than two nor more than five years in the state penitentiary upon each count on which you find him guilty.'
An exception was properly saved to the giving of each and every one of the instructions. The motion for new trial assigned error to the giving of instructions 6, 7, 8, 9, and 10, but not as to instruction 11, which specified the appropriate punishment.
The sentencing of appellant as for a felony, based upon the information, the evidence, and the verdict in the case, was clearly improper and erroneous; but it is very doubtful under our uniform decisions on the subject, whether, in the motion for new trial, the attention of the trial court was properly called to the error in entering such judgment or in giving instruction 11, authorizing the assessment of punishment at imprisonment in the penitentiary. However, it is not necessary to consider whether the point was properly saved, and, if so, whether appellant could properly be sentenced as for a misdemeanor, notwithstanding the improper assessment of punishment by the jury, because the judgment must be reversed for error properly assigned and preserved in the giving of instructions, which will be noticed later.
As the case must be retried, we should consider the propriety of a conviction for a felony, even if the error in such respect has not been properly saved for review, in order that a repetition of the error may be avoided upon another trial.
So much of section 3343, as is applicable here, reads as follows:
'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, right in action or other valuable thing or effects whatsoever, * * * shall upon conviction thereof be punished in the same manner and to the same extent as for feloniously stealing the money, property or thing so obtained.' (Italics ours.)
In the statutes of 1899, this section appeared as section 1927, and read as does our present section 3343. In 1909 (Laws of 1909, p. 456, § 8) said section was amended by striking out the words we have italicized and adding the words 'by imprisonment in the penitentiary for a term not exceeding seven years.' In the 1909 revision, the section as thus amended appeared as section 4565. In 1911 (Laws of 1911, p. 195, § 1) said section was again amended by striking out the words added in 1909 and again inserting the words stricken out in 1909. Therefore section 1927, R. S. 1899, and section 3343, R. S. 1919, are in identical language.
From this history of the section it is apparent that the Legislature was not satisfied with the experiment of making it a felony to obtain money or property under false pretenses, regardless of the...
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