State v. Hotsenpiller

• Decision Date: 12 December 1949
• Docket Number: No. 41541.,41541.
• Parties: STATE OF MISSOURI, Respondent, v. JAMES HOTSENPILLER, Appellant.
• Court: Missouri Supreme Court

224 S.W.2d 1014

STATE OF MISSOURI, Respondent, v. JAMES HOTSENPILLER, Appellant.

No. 41541.

Supreme Court of Missouri.

Division Two, December 12, 1949.

Appeal from Benton Circuit Court; Hon. Dewey P. Thatch, Judge.

AFFIRMED.

Fred F. Wesner and Earl T. Crawford for appellant.

(1) The court erred in allowing the state to attempt to prove that the defendant had committed an allegedly similar offense on or about December 24, 1947, in order to shed light on the necessary intent of the offense claimed to have been committed on the 20th or 21st day of November, 1947, and for which he was on trial. It is only prior similar offenses that should be allowed in evidence to show intent. State v. Palmberg, 199 Mo. 233, 97 S.W. 566; State v. Amende, 338 Mo. 717, 92 S.W. (2d) 106; State v. Letourneau, 24 R.I. 3, 51 Atl. 1048; Coblentz v. State, 84 Ohio St. 235, 95 N.E. 768. (2) The court erred in refusing to give defendant's Instruction A directing a verdict of acquittal at the close of the state's evidence and in submitting the case to the jury and refusing to grant a new trial. State v. Smith, 31 Mo. 120; State v. McConnell, 240 Mo. 269, 144 S.W. 836; State v. Kinder, 315 Mo. 1314, 290 S.W. 130. (3) The court erred in giving Instruction 1, as said instruction contained improper assumptions. State v. Steele, 226 Mo. 583, 126 S.W. 406; State v. Lee, 272 Mo. 121, 182 S.W. 972; State v. Johnson, 234 S.W. 794; State v. Denison, 352 Mo. 572, 178 S.W. (2d) 449. (4) The court erred in giving Instruction 2 for the following reasons: Said instruction assumed that the defendant had the necessary criminal intent and motive for a conviction when it told the jury that the evidence introduced as to other transactions, was submitted to them "for the sole purpose of shedding light" upon the intent and motive of the defendant in the transaction for which he was on trial. State v. Johnson, 234 S.W. 794; State v. Lee, 272 Mo. 121, 182 S.W. 972; State v. Steele, 226 Mo. 583, 126 S.W. 406. (5) Said instruction commented on the evidence by indicating to the jury that the required criminal intent and motive had been established and that the evidence as to other transactions might be considered for the sole purpose of "shedding light," that is, explaining such intent and motive. State v. Denison, 352 Mo. 572, 178 S.W. (2d) 449; State v. Johnson, 234 S.W. 794. (6) Said instruction misstated the law applicable in that: It specified that evidence as to other transactions was submitted "for the sole purpose of shedding light upon the intent and motive of the defendant" instead of for the purpose of proving intent and motive. State v. Samis, 296 Mo. 471, 246 S.W. 956; State v. Spinks, 344 Mo. 105, 125 S.W. (2d) 60; State v. Patterson, 347 Mo. 802, 149 S.W. (2d) 332. (7) It told the jury that evidence of other "transactions" could be considered for the purpose of shedding light on the intent and motive of the defendant in the "transaction" charged in the information. State v. Hyde, 234 Mo. 200, 136 S.W. 316; State v. Flores, 55 S.W. (2d) 953; State v. Patterson, 347 Mo. 802, 149 S.W. (2d) 332. (9) Said instruction was confusing, ambiguous, and erroneous, as it told the jury that the evidence "as to other transactions," apparently referring to the various phases of a similar offense, might be considered for the sole purpose of shedding light on the intent and motive of the defendant in the "transaction," probably meaning crime, set out in the information in this case. State v. Steele, 226 Mo. 583, 126 S.W. 406; State v. Johnson, 234 S.W. 794. The argument of the attorney for the state constituted an improper comment on the failure of the defendant to testify. Sec. 4082, R.S. 1939; State v. Drummins, 274 Mo. 632, 204 S.W. 271.

J.E. Taylor, Attorney General, and Robert L. Hyder, Assistant Attorney General, for respondent.

(1) An offense of similar nature occurring near the same time as the offense charged is admissible in a fraud case, in order to show intent. State v. Craft, 126 S.W. (2d) 177; State v. Shilkett, 203 S.W. (2d) 920. (2) The evidence was sufficient to support the verdict. (3) Instruction 2, relating to the effect to be given other similar transactions, was proper. State v. Craft, 126 S.W. (2d) 177; State v. Hughes, 125 S.W. (2d) 66. (4) The statements of the prosecuting attorney did not constitute an improper comment on the failure of the defendant to testify. State v. Ruck, 194 Mo. 416, 92 S.W. 706; 9 Mo. Digest; State v. Reynolds, 131 S.W. (2d) 552, 345 Mo. 79; Boehm v. U.S. 123 F. (2d) 791.

ELLISON, J.

The appellant was convicted by a jury in the circuit court of Benton county on change of venue from Pettis county, of the crime of cheating and defrauding one Henry Cartwright of $74.80, in violation of Sec. 4694, R.S. 1939, Mo. R.S.A. by selling and delivering to him a truck load of corn accompanied by a false, forged and counterfeited scale ticket stating an overweight which, at the stipulated price of the corn per bushel, called for an overcharge in the above amount innocently paid by Cartwright. The punishment assessed was two years imprisonment in the penitentiary. The appellant did not testify or produce controverting evidence, but stood on a peremptory instruction in the nature of a demurrer to the State's evidence. Appellant's brief on this appeal complains of: (1) the insufficiency of the State's evidence; (2) the admission of incompetent evidence; (3) error in two instructions given at the request of the State; (4) and prejudicial argument by the State's attorneys.

The prosecuting witness, Cartwright, testified that on or about November 20, 1947, he ordered a truck load of shucked ear corn from appellant at the price of $2.20 per bushel. It was delivered to him the next day by appellant's truck driver, a negro named Henry Jackson, with a scale ticket. Cartwright gave the driver his check for $491.55, the price of the corn based on the weight shown by the scale ticket. It showed the gross weight 22,010 pounds, the tare 6,370 pounds and the net weight 15,640 pounds, or 223 bushels 30 pounds at 70 pounds per bushel. When the corn was leveled off and measured in Cartwright's crib, which would hold 300 bushels, he found it was short such number of bushels as would come to $74.80 at the contract price of $2.20 per bushel, which would be 34 bushels, or 2380 pounds.

W.C. Jones operated a grain elevator at La Monte in Pettis county. He testified that on or about November 20, 1947, he sold a load of ear corn to appellant, or in his name, by telephone, and that appellant's negro truck driver, Henry Jackson, came for it. Jones said he delivered the corn to the truck driver along with a duplicate original copy of the scale ticket, which showed the gross weight 20,680 pounds, the tare 7,420 pounds, and the net weight 13,260 pounds. The difference between this net weight and the 15,640 pounds net weight shown on the ticket Cartwright received from the truck driver is 2380 pounds. The truck driver paid for the corn with a $500 bill (U.S. currency).

The negro truck driver testified that on or about November 20 or 21, 1947, he went to the La Monte elevator and got the load of corn from Jones, returning to appellant's office in Sedalia. He paid Jones cash for the corn with a $500 bill and received from Jones the change and a scale ticket, which he turned over to appellant. It was the only load of corn he had ever delivered to Cartwright from the La Monte elevator. After he got something to eat appellant gave him a ticket and he delivered that corn and that ticket to Cartwright at his farm, and Cartwright gave him a check. The check was dated Nov. 21, 1947. But the witness could not identify either the check or scale ticket Cartwright had produced in evidence as the ones he had handled in the transaction with Cartwright.

The latter, or Cartwright's, scale ticket in general form was like the duplicate Jones, the seller, had retained, but not exactly. For instance the Jones ticket bore a number 2689; was dated "La Monte, Mo. 11-20-47"; bore a caption "La Monte Elevator Co. Member Federal Warehouse System"; under the title "weights" was a list of 15 grains and seed with the weights per bushel; and recited "Load of ear corn from La Monte Elevator to J.M. Hotsenpiller" (appellant). On the other hand, the ticket delivered by the truck driver to Cartwright bore no number; was dated 11-21-47; bore no caption; under the title "Legal Weights" was a list of 22 grains, fruits and seeds with the weight per bushel; and recited it was a "Load of corn From Johnsons Farms to Jim Hotsenpiller." And in addition the gross, tare and net weights on the two tickets were different, as already stated.

Roy Anderson testified that "last fall" [which would have been the fall of 1947, since the trial was held in July, 1948] he sold some loose corn to the negro Jackson, who had a truck with Hotsenpiller's name on it, and told Jackson to weigh it on the city scales. He followed the last truck load of corn into Sedalia. The negro did not take the corn to the city scales, but backed it into the Hotsenpiller place of business at the direction of appellant. Thirty sacks of corn were on top of the witness' loose corn in the truck and were being removed when the witness went over to the truck. Appellant left, went into a store entrance through a driveway, and disappeared. The witness went in and talked to appellant's father and a young lady. He told them he was going to take the corn to the city scales. The negro driver Jackson did so and they gave him a $916 check for the corn immediately afterward.

R.O. Sanders testified he bought a load of corn from appellant. As we understand, the negro Jackson delivered the corn and presented a city scale ticket at the gate. It showed a net weight of 13,090 pounds and was dated Dec. 23, 1947. After receiving certain information about the corn, Sanders had it weighed at Smithton on December 24, and the net weight there was...