State v. Hurt

• Decision Date: 15 February 1916
• Docket Number: No. 19022.,19022.
• Parties: STATE v. HURT.
• Court: Missouri Supreme Court

183 S.W. 333

STATE v. HURT.

No. 19022.

Supreme Court of Missouri, Division No. 2.

February 15, 1916.

Appeal from Circuit Court, Shannon County; W. N. Evans, Judge.

Walter H. Hurt was convicted of obtaining money by false pretenses, and he appeals. Reversed and remanded for a new trial.

The information charges:

"That W. H. Hurt on or about the 10th day of March, 1914, in said county of Shannon and state of Missouri, did then and there unlawfully, willfully, feloniously, and designedly with intent to cheat, wrong, and defraud one C. E. Randall, did falsely pretend to the said C. E. Randall that he the said W. H. Hurt was the owner of 147 head of cattle free and clear of any incumbrance, and the said C. E. Randall believing the said false and fraudulent pretenses to be true and being deceived thereby was by reason thereof induced to take a chattel mortgage on 147 head of cattle and pay to the said W. H. Hurt the sum of $2,800 thereon, of lawful money, and that the said W. H. Hurt by means of the said false and fraudulent pretenses so made to the said C. E. Randall as aforesaid, unlawfully, feloniously, and designedly did obtain of and from the said C. E. Randall the said sum of $2,800 of the moneys and property of the said C. E. Randall then and there to cheat, wrong, and defraud the said C. E. Randall of the same, when in truth and in fact the said W. H. Hurt did not own the said 147 head of cattle as aforesaid free and clear of incumbrance, but on the contrary said W. H. Hurt did not own said cattle as aforesaid free and clear of any incumbrance; that on the 7th day of July, 1913, said W. H. Hurt mortgaged said cattle to one R. S. Hogan to secure the sum of $500, and on the 18th day of November, 1913, the said W. H. Hurt mortgaged the said cattle to the Bank of Alton to secure the payment of $2,150.26, and also on the 20th day of February, 1914, the said W. H. Hurt mortgaged said cattle to the First National Bank of West Plains, Missouri, to secure payment of $1,000; that all of the above set out and mentioned incumbrances were all unknown to said C. E. Randall — against the peace and dignity of the state."

The chattel mortgage given by defendant to C. E. Randall and read in evidence was dated March 10, 1914, and purported to secure the payment of a note for $2,800. It covered the following property:

"One hundred and forty seven head of cattle, described as follows: Ten three year old steers, 5 three year old heifers, 23 yearling steers, 97 coming two year old steers, and 10 coming two year old heifers, at an average cash value of $30 per head, a total of $4,400, all marked with a label bearing my name and address in the upper part of each ear and branded on the left hip with a mule shoe, toe upward. Cattle are various colors, mostly red. Now located on my farm in sections 5 and 6, township 25, range 5, Oregon county, Mo. Being all of the live stock of the above description owned or controlled by the said mortgagor now on said premises."

Randall was at that time the cashier of the Citizens' State Bank of Birch Tree, Shannon county. The defendant, a resident of Oregon county, lived on a farm and dealt extensively in cattle. The loan of $2,800 secured by that chattel mortgage consisted of a prior indebtedness of defendant to that bank, and about $968.60 placed to his account in that bank subject to check, and which he checked out in the usual course.

The state read in evidence certified copies of three original chattel mortgages executed by defendant and on file in the recorder's office of Oregon county, as follows:

(1) Chattel mortgage to R. S. Hogan, dated July 5, 1913, filed July 7, 1913, to secure $500 on the following property:

"Thirty steers, one year old past, all branded with a mule shoe on left hip, toe turned up and labeled with metal tag in the top side of each ear inscribed, `Hurt & Son, Not, Mo.'"

(2) Chattel mortgage to the Bank of Alton, dated November 17, 1913, filed November 18, 1913, to secure $2,150.26 on the following property:

"42 two year old steers, 75 one year old steers, 16 cows, all branded on left hip with mule shoe and labeled on overpart of both ears, which is free from debt."

(3) Chattel mortgage to the First National Bank of West Plains, dated February 19, 1914, filed February 20, 1914, to secure $1,000 on property described as follows:

"Thirty-two head of steers, coming two year old, all dehorned, to be branded `U' on left hip and tagged in both ears, color mostly red. All located on my farm seven miles north of Thomasville, Mo., where I now live, known as Joe Pierce place."

The defendant objected to each of said copies of said chattel mortgages on the ground that the original instruments should be produced, and the copies were only secondary evidence; that the absence of the originals had not been accounted for, and on the ground that those instruments did not describe the same cattle mentioned in the chattel mortgage to Kendall above mentioned. The objections were overruled.

There was no evidence to identify the property described in those prior mortgages as the same as that described in the Kendall mortgage, except the evidence furnished by those instruments.

J. N. Burroughs, of West Plains, L. B. Shuck, of Webb City, and John H. Chitwood, of Eminence, for appellant. John T. Barker, Atty. Gen. (Kenneth C. Sears, of Jefferson City, of counsel), for the State.

ROY, C. (after stating the facts as above).

I. The information is insufficient. It does not allege that the three prior mortgages described the property any more definitely than by the words "147 head of cattle." Our decided cases in this state are unanimous that such a description is too general and invalidates the mortgage. Stonebraker v. Ford, 81 Mo. 532; Chandler v. West, 37 Mo. App. 631; Bozeman v. Fields, 44 Mo. App. 432; State v. Stowe, 132 Mo. 199, 33 S. W. 799.

Whenever the existence of a deed, note, check, or other document is alleged in an indictment as one of the facts on which a conviction is sought, the purport of such instrument must be set out in the indictment in such manner that the court can see that it is a valid instrument of the kind mentioned in the charge. In State v. Barbee, 136 Mo. 440, 37 S. W. 1119, it was charged that the defendant falsely represented that he "was then and there the owner of a certain promissory note given in payment of a load of cattle sold by him to one William Watson, said note being made, executed, and delivered by said William Watson for the purchase price thereof." It was held that the indictment should have alleged the date and amount of the note and the time of its maturity. It was there said:

"Now all these things would have to have been proved in order to conviction, and so it was necessary that they should have been alleged, because what is not alleged is not allowed to be proved, and because, further, the law, guided by the same beneficent spirit which presumes innocence until guilt be established, will presume that what the indictment does not charge does not exist."

In State v. Murphy, 141 Mo. 267, 42 S. W. 936, defendant was charged with stealing $29.35 in money, "and one check for the sum of $1.35, of the value of $1.35." This court there...