State v. Jamison

• Citation: 186 S.W. 972,268 Mo. 185
• Decision Date: 31 May 1916
• Docket Number: No. 19385.,19385.
• Parties: STATE v. JAMISON.
• Court: United States State Supreme Court of Missouri

186 S.W. 972

268 Mo. 185

STATE v. JAMISON.

No. 19385.

Supreme Court of Missouri, Division No. 2.

May 31, 1916.

Appeal from Criminal Court, Jackson County; Edward E. Porterfield, Judge.

L. A. Jamison was convicted of grand larceny, and he appeals. Reversed and accused discharged.

Defendant was convicted in the criminal court of Jackson county of grand larceny, under the provisions of section 4566, R. S. 1909, and his punishment assessed at imprisonment in the state penitentiary for a term of two years. Pursuant to the usual procedure he has appealed. While the conviction here is, as stated, for grand larceny, it is for that alleged sort of grand larceny which the statute supra says may be bottomed upon false pretenses. So, leaving out of view all questions regarding the legal propriety of such a conviction, because not involved in the conclusions we have reached, we are yet upon any view compelled to approach it on the theory that, if it be grand larceny, it is so only because it involves obtaining money by such false pretenses as constitute grand larceny. Therefore, absent such false pretenses as are criminal, it is obvious that there can be no grand larceny in the case. Looking, therefore, to the facts upon which the alleged false pretenses are bottomed, we find these facts to run substantially thus:

The prosecuting witness, one T. M. Brown, was at all the times mentioned in this record engaged in business as a merchant in Kansas City, Mo. The defendant seems to have been engaged in business as a druggist in said city. Upon a time shortly prior to the happening of the matters and things set forth in the record before us, defendant seems to have begun to exploit a real estate scheme upon certain lands said to be situated in Pipe Valley, in Mohave county, Ariz., and on which defendant claimed that his brother and he held a "squatter's right." The prosecuting witness, Brown (hereinafter simply so called for brevity), heard of the alleged "squatter's right" which defendant claimed to have on this land, and being desirous, seemingly, of getting in on it, called defendant up on the telephone. Defendant came to see Brown, and they began discussing this land proposition. According to Brown, defendant represented to him that defendant's brother, C. B. Jamison, and defendant, as partners, had secured the aforesaid "squatter's right" to something like 50,000 acres of government land in northern Arizona, to wit, in Pipe Valley, Mohave county; that they were locating people upon this land; that they had already placed about 100 persons there; that it was fertile soil, with plenty of moisture for dry farming, and with artesian water obtainable at shallow depths, and in a beautiful flower-filled valley, which would raise anything, and which would furnish and was furnishing grass and pasture for thousands of lowing kine. After defendant had explained the desirability and beauty of this land to Brown and its availability for homesteading, Brown says they had further converse thus:

"I says, `It would be impossible for me to take up that land; you and I all know, to homestead, or anything like that, you have to live on it about seven months out of the year.' I says, `I could not leave my business and go out and stay seven months in the year.' He says, `Mr. Brown, you would not have to do that; you can get this land absolutely without living on it; all you have to do is to go out and see the land, and when the government surveys it you will go out and file on it, and then there was something like $17 for filing; then you can stay in Kansas City, or Egypt, and get this land.' He told me that the homestead laws of the United States did not require me to live on this land."

After some further conversation and discussion of the matter Brown and the defendant entered into a written contract, under the terms of which Brown paid to defendant the sum of $125 in cash, which sum constitutes the property herein alleged to have been obtained by false pretenses, and agreed upon a contingency therein named, and below made clear in the instrument we set out, to pay to him an additional sum of $125. The cash payment made by Brown to defendant was, upon the contingency set forth in said contract, to be returned. This agreement is as follows:

"This agreement, entered into this 12th day of August, 1912, by and between L. A. Jamison, of Kansas City, Missouri, and C. B. Jamison, of St. George, Utah, parties of the first part, and T. M. Brown, of Kansas City, Missouri, part of the second part.

"Whereas, the said L. A. and C. B. Jamison agree to maintain a squatter's right on the west one-half of section 33, Jamison survey, located in Pipe Valley, Mohave county, Arizona, for and in the interest of said T. M. Brown, and further agree to look after all improvements on said one-half section of Jamison survey, until the party of the second part secures his deed from the government to said one-half section 33, Jamison survey, for which service the parties of the first part hereby acknowledge receipt of $125, the said party of the second part further agreeing to pay $125 additional when he files with the government, or within a period of time not to exceed three months thereafter: Provided, the party of the second part finds the above described land as represented.

"If, however, the party of the second part does not find this land as represented to him by the parties of the first part, or the entire proposition is not found to be as represented, in so far as ability to secure possession of same under the Smoot Act, then the parties of the first part agree to return to party of the second part the $125 advanced payment, above mentioned, and to waive the payment of the additional $125, then this contract to become null and void; otherwise, to remain in full force and effect.

"In witness whereof, the said parties have hereunto set their names, this 12th day of August, 1912, A. D."

Some time after the said sum of $125 was paid by Brown to defendant, Brown went West with a view of examining the Pipe Valley, the locus in quo, and the tract of land described in the above written agreement. It was arranged for him to meet in the West the brother of defendant, said C. B. Jamison, who is jointly indicted herein with defendant, and who was to show Brown the land on which defendant claimed that he and this brother had "squatter's rights." In passing, it will no doubt be noted that the lands are said in the written agreement above to be located in "Pipe Valley." In the light of the facts of this case, the name given to this flowery valley seems significant, if not sinister.

Brown did not go upon these lands, or see them, when he reached the vicinity of their alleged location; but, having met said C. B. Jamison at a point some 40 or 50 miles distant from Pipe Valley, and upon informing the latter of the representations made by defendant to him (Brown) that he would not be required to reside upon this land in order to homestead it, he was told by Jamison that if he expected to acquire title to these lands under the homestead law without actual residence thereon that he would as well go home and get his money back from defendant. Thereupon Brown turned back and returned home to Kansas City, without ever having seen Pipe Valley at all.

Other witnesses in the case, from whom money in greater or less amounts was gotten by defendant upon similar representations and contracts, did go upon these lands, and found them, when examined, not to be, as to moisture and springs and artesian water, and as to population already present and coming, and perhaps as to other minor particulars, as represented by defendant.

A most flamboyant and highly colored pamphlet, descriptive of Pipe Valley, was printed and circulated by defendant. But, since this pamphlet was not in existence at the time the money in controversy was obtained by defendant from Brown, we need not notice the statements contained in it, further than to say that according to Brown the statements made to him orally by defendant were similar to and equally as complimentary and highly colored as those contained in the pamphlet. Other witnesses, however, who testified as to other similar transactions with defendant, and who were offered by the state for the purpose of showing intent, did, they swear, pay defendant money on account of the representations contained in the pamphlet mentioned.

Upon the trial, and upon being asked to state specifically on what facts he relied when he paid defendant the money here in question, Brown answered categorically, and repeatedly that he relied solely upon the statements to him of defendant that he could get this land and obtain a title to it under the homestead laws of the United States without being required to take up, or maintain an actual residence on it. Being asked what the payment of the $125 in question here was made to defendant for, Brown said that this payment was for getting this land, for looking after it and perfecting the title when it was surveyed, and for doing certain improvements, and that, in addition, for the service above mentioned he was to give defendant a further sum of $125.

When Brown got back home to Kansas City from the West, pursuant to the advice in such behalf given to him by C. B. Jamison, he went at once to defendant and demanded repayment of the $125 which he had paid defendant. Defendant repeatedly promised to pay this money back to Brown, but, continuing to make default in this promise, he was subsequently arrested, the information herein was filed against...