State v. Houchins

• Decision Date: 17 February 1932
• Docket Number: No. 31461.,31461.
• Citation: 46 S.W.2d 891
• Court: Missouri Supreme Court
• Parties: STATE v. HOUCHINS.

46 S.W.2d 891

STATE v. HOUCHINS.

No. 31461.

Supreme Court of Missouri, Division No. 2.

February 17, 1932.

Appeal from Circuit Court, Jackson County; Brown Harris, Judge.

George Houchins was convicted of obtaining money under false pretenses, and he appeals.

Reversed, and defendant discharged.

William C. Reynolds and Ray W. Cummins, both of Kansas City, for appellant.

Stratton Shartel, Atty. Gen., and Edward G. Robison, Asst. Atty. Gen., for the State.

FITZSIMMONS, C.

Appellant and George A. Montgomery were charged by indictment in Jackson county with the crime of obtaining $875 from James E. Trogdon under false pretenses. Montgomery's application for a severance was granted, and appellant George Houchins was put upon trial. He was found guilty and his punishment was fixed at two years' imprisonment in the penitentiary. His motion for a new trial was overruled, judgment was passed, and an appeal to this court was applied for and granted.

The indictment, returned April 28, 1930, charged that appellant and George A. Montgomery, on or about December 8, 1928, at Jackson county, Mo., sold to James E. Trogdon one hundred sheep; that appellant and Montgomery falsely pretended to Trogdon that the sheep were three to four years old; that they were Colorado sheep; that they weighed ninety to ninety-five pounds each; that they were worth $8.75 a head; that they (Houchins and Montgomery) paid $8.75 a head for them; that Trogdon, believing these false pretenses to be true and relying thereon and being deceived thereby, was induced to buy and did buy the sheep and paid to Houchins and Montgomery $875. The indictment negatived the representations ascribed to appellant and Montgomery by charging that the sheep were not three to four years of age, but were six years of age and over; that they were not Colorado sheep, but Texas sheep; that they did not weigh ninety to ninety-five pounds each, but forty to forty-five pounds each; that they were not worth $8.75 each but $2 each; that Houchins and Montgomery did not pay $8.75 a head for the sheep, but only $7 a head.

The prosecuting witness, Trogdon, formerly was a lawyer in Kansas City. But he lost his sight about 1920, and he moved with his family to Henry county, Mo., where he took up a farm. Dr. Lee Haynes, a Kansas City physician, who befriended and helped Trogdon in a practical way, also knew appellant, Houchins, who, at the time charged in the indictment, kept a parking lot at Thirteenth and Locust streets in Kansas City. Houchins originally was a sheepman. He had been in the business of buying and selling sheep in the Kansas City stockyards for years, and, as he put it, he had been raised in his father's sheep pen. In October, 1928, Trogdon had some money which Dr. Haynes had put him in the way of making, and, with this money, Trogdon bought at the Kansas City stockyards, through appellant Houchins, twenty-nine sheep. These sheep were satisfactory, and so about the 1st of December, 1928, Trogdon went again to appellant. This time it was to buy one hundred sheep, for Trogdon's wife had come into some money. Out of the resulting deal came the prosecution, trial, conviction, and appeal.

On behalf of the state, Dr. Haynes, Mr. Trogdon, and his son testified that Trogdon informed appellant that he wished to buy one hundred ewes and one buck, that they should be Western sheep, weighing eighty-five to ninety-five pounds, and should be two to four years old. During the week beginning December 1, 1928, Mr. Trogdon and his son went with appellant daily to the Kansas City stockyards and looked at sheep. Early in the week at the stockyards appellant introduced the Trogdons to Montgomery, a sheep broker, who said that he had somewhere in Kansas a flock of sheep of the age, weight, and kind that Trogdon wanted, and were Westerns. They had been raised in Colorado, Montgomery said. Montgomery priced these sheep at $9 a head for one hundred ewes and $10 for a buck, Montgomery to pay the freight. Montgomery said he had had eleven hundred sheep, but he had sold them down to three hundred, and would give Trogdon his choice of the flock if Trogdon wished to go to the ranch where they were.

Appellant, Houchins, informed Trogdon, so Trogdon testified, that he had known Montgomery fourteen years, that he was absolutely reliable. Houchins added: "If I was buying them I wouldn't even go out and look at them. But you buying them, I wouldn't want you to buy them unless we examine them." Trogdon took this offer under consideration and continued his search of the yards. But the sheep on sale either were too old or too light or they were Southerns. Appellant was with Trogdon on these daily rounds of the stockyards, and Montgomery met them every day, Trogdon testified. But Montgomery denied this.

The price of one hundred ewes at $9 a head and one buck at $10 was $910, and, on Friday of the week at the stockyards, Trogdon, not having found there sheep to suit him, procured a cashier's check for $910, payable to his order. It was agreed on that Friday between the persons concerned that, on the following Sunday, appellant Houchins should drive Trogdon and his son and Montgomery to Beloit, Kan., where, Montgomery had finally disclosed, the sheep were. But bad weather came on Saturday, and the parties decided that they could not go to Beloit by automobile on account of the condition of the roads.

Of what happened between Trogdon and appellant on the Saturday — which was December 8, 1928, the day as of which the charge is laid — Trogdon testified: "Then he (appellant Houchins) said it wouldn't be necessary for us all to go and it would be pretty expensive and if he was me he wouldn't make the trip. The boy didn't know much about sheep, and it wouldn't be necessary. * * * He said he would go out and attend to it himself. So I decided to let him go. I thought he was all right, and I gave him the draft for $910, and told him to go out and pick me one hundred of the best ewes there and one buck. And if the bucks were extra good to buy me an extra one if he could and I would pay for it when he got back. So with that, he went out there himself. So I didn't see him any more until Monday morning."

Trogdon testified that, in parting with his money and in buying the sheep, he relied on the representations made by Montgomery and Houchins and was deceived by these representations. Trogdon, Jr., was asked: "What made you conclude to buy them (the sheep) from him (Montgomery)? A. Montgomery's representations and Mr. Houchins' statement that Mr. Montgomery was a perfectly honest man and that he was reliable in every respect and that we could depend on his word any where, any time." Trogdon, Jr., further testified: "We agreed to take one hundred ewes and one buck at that price ($910.). Mr. Houchins went out at that price and we gave him a cashier's check for $910. We gave it to him and he went and made the purchase with the understanding that he was to buy the sheep if they were as represented."

At this meeting on Saturday, Trogdon's son gave to Houchins shipping directions by handing to him a slip of paper on which was written the name of his father and of the nearest railroad station, Urich, Mo. This station is on a branch of the Frisco and is three miles from Trogdon's farm. In fact the sheep were shipped from Beloit, Kan., to Orrick, Mo., on the Wabash Railroad forty odd miles from the Trogdon farm. Urich and Orrick are more alike in sound than in spelling. It is undisputed that appellant can do little more than write his name.

Trogdon testified that when Houchins returned from Beloit, Kan., to Kansas City, Mo., on Monday, December 10, 1928, Houchins gave to Trogdon a written statement showing that he had bought the one hundred and two sheep at $8.75 each, and had paid his railroad fare and hotel bill, making a total outlay of $912.75. Trogdon testified that he then paid to Houchins in cash $2.75 which was the excess of the expense bill over the amount of the check for $910 which Trogdon had given him. Trogdon also testified that appellant said that appellant's daughter-in-law had prepared the written statement, as he (Houchins) could not write very well. Trogdon further testified that in February, 1929, several months after the settlement in December, 1928, appellant, when confronted in a lawyer's office, admitted that he had paid only $7 per head for the sheep. Trogdon, Jr., confirmed his father's testimony about the settlement and identified the written statement which appellant had given. In his own defense, Houchins denied that he gave to Trogdon the statement which the prosecuting witness had produced, denied that his daughter-in-law had written such a statement, and testified that, on his return from Kansas, he settled with Trogdon on a basis of $750, paid by him to Montgomery for the sheep, plus his railroad and hotel expenses. Appellant further testified that his son and Trogdon's son figured the total outlay, and that he (Houchins) paid to Trogdon in cash the difference between his outlay and the check for $910, amounting to about $141.

The state in rebuttal called appellant's daughter-in-law, Mrs. Rose Houchins. She denied that she had written the statement which is State's Exhibit 2. Then, at the direction of the prosecuting attorney, she wrote, while on the witness stand, a copy of Exhibit 2. The state next called Curtis Houchins, defendant's son and the husband of Mrs. Rose Houchins, and sought to prove by him that Exhibit 2 was in his wife's handwriting. Failing in this, the state procured a handwriting expert who testified that in his opinion the original Exhibit 2 and the copy which Mrs. Houchins had written on the witness stand, were in the same...