State v. Jarrett

Decision Date12 June 1972
Docket NumberNo. 2,No. 54465,54465,2
Citation481 S.W.2d 504
PartiesSTATE of Missouri, Respondent, v. Kenneth JARRETT, Appellant
CourtMissouri Supreme Court

John C. Danforth Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.

Jerome F. Waterman, Houlehan & Waterman, Kansas City, for appellant.

HOUSER, Commissioner.

Original appeal by Kenneth Jarrett from a 7-year sentence on conviction of obtaining money by false pretenses by means of a confidence game, § 561.450, RSMo 1969, V.A.M.S., following trial by the court sitting without a jury.

The first questions are whether the Third Amended Information on which defendant was tried charged a crime under § 561.450 and, if not, whether the judgment of conviction should be sustained on the basis of the Fourth Amended Information, which was filed by leave of court on the day the court entered its judgment, approximately two months after the case was taken under submission.

Section 561.450 makes a felon of every person who, with intent to cheat and defraud, shall obtain from any other person any money by means of any trick or deception, or false and fraudulent representation, or statement or pretense, commonly called 'the confidence game.'

The Third Amended Information charged that defendant did, with intent to cheat and defraud, obtain $200 from one Haggerty by means by trick, deception and false and fraudulent representation, and statements or pretense, commonly called 'confidence game' by knowingly making false and fraudulent representations to the effect that the two homes owned by Haggerty were infested with termites to a dangerous extent requiring immediate treatment, 'when in truth and in fact said Kenneth Jarrett knew that such was not the case, and the said (Haggerty) relied upon and believed the truth of pretenses made and was thus induced to part with his said money.'

In the Fourth Amended Information the following was substituted for the immediately preceding quotation: 'when in truth and in fact the said two homes owned by said (Haggerty) * * * were not infested with termites, and the said Kenneth Jarrett at said time and the said Kenneth the said two homes * * * were not infested with termites.'

The Third Amended Information is defective, for failure to falsify the pretension by specific and distinct allegations (in this case for failure to allege that the two homes were not infested with termites). It is not sufficient to charge that defendant falsely and fraudulently pretended that the houses were infested with termites knowing that such was not the case. This has been the law of the State for 111 years, beginning with State v. Peacock (1861), 31 Mo. 413. In that case the false pretense was negatived as follows: 'whereas in truth and in fact the said land was not as represented by the said Amos Peacock,' and in this respect the indictment was held defective. See State v. Bonnell (1870), 46 Mo. 395; State v. Saunders (1876), 63 Mo. 482; State v. Bradley (1878), 68 Mo. 140; State v. DeLay (1887), 93 Mo. 98, 5 S.W. 607; State v. Phelan (1900), 159 Mo. 122, 60 S.W. 71; State v. Young (1916), 266 Mo. 723, 183 S.W. 305, 307(1); State v. Ruwwe (1922), Mo.Sup., 242 S.W. 936. In State v. Strack (1927), 316 Mo. 591, 292 S.W. 63, 64(6), this Court said: 'In cases of false pretense, perjury, and other frauds, it is necessary to negative the averments of the matter put forward as true.' In 32 Am.Jur.2d False Pretenses § 61, p. 214: 'It is essential to the validity of the indictment that it contain a distinct and specific averment that the representations made are false in fact and are fraudulent. But it has been said that it is not enough to characterize a representation as 'false' or 'fraudulent,' and that the particulars in which the representations relied upon are false must appear from facts directly and positively set out.' See also 35 C.J.S. False Pretenses § 42c, p. 874, and Anno. 33 A.L.R. 1154.

The missing element was supplied by the filing of the Fourth Amended Information, in which it was distinctly averred that the two homes owned by Haggerty were not infested with termites. Conceding that the Fourth Amended Information corrected the defect, dedendant contends that the court erred in permitting it to be filed because the Fourth Amended Information charged an additional or different offense and defendant's substantial rights were prejudiced in that the latter information contained an additional element not contained in the Third Amended Information, requiring defendant to introduce rebuttal testimony which he was not prepared to do. First, defendant cites City of St. Louis v. Vetter, Mo.App., 293 S.W.2d 140, for the proposition that under Criminal Rule 24.02 1 V.A.M.R., an amendment of an information is not permitted when the original complaint fails to charge an offense. That case is impliedly overruled by later Supreme Court cases, including State v. Lafferty, Mo.Sup., 416 S.W.2d 157, which holds that although an original information is fatally defective for omission of an essential averment, where it attempts to charge and is sufficient to advise the accused of the charge against him, an amendment adding language which removes all doubt about the sufficiency of the original charge may be made by leave of court and there is not prejudice to the accused by reason of such an amendment or correction as long as no additional or different offense is charged. (See cases cited in Lafferty, 416 S.W.2d l.c. 160(2).) The Fourth Amended Information states no additional or different offense. The Third Amended Information is readily identifiable as a charge under § 561.450. It states the essence of the offense: that the injured party parted with his money in reliance upon a false and fraudulent representation, pretense, or trick, State v. Fields, Mo.Sup., 366 S.W.2d 462; State v. Stegall, Mo.Sup., 353 S.W.2d 656; State v. Cunningham, Mo.Sup., 380 S.W.2d 401; State v. Garner, Mo.Sup., 432 S.W.2d 259. It alleges the essential element of intent to cheat and defraud and defendant's knowledge of the falsity of the representation. It plainly describes an offense defined in § 561.450 and contains a specification of the transaction with sufficient particularity to enable accused to know what he is charged with; sufficient in detail to apprise accused of the nature of the alleged deceit, pretense and trick and the cause of the accusation against which he must defend himself. It is clearly sufficient to bar further prosecution for the same offense. All it lacked was an averment specifically and distinctly alleging the falsity of the pretension. It was within the discretion of the trial judge to permit an amendment supplying that omission, thus perfecting the statement of the same offense imperfectly charged in the Third Amended Information.

Defendant claims prejudice, however, in that the failure of the Third Amended Information to allege that there was no termite infestation caused defendant not to prepare to contradict testimony (introduced by the State at the trial) that no termites were found; in other words, that since the falsity of the pretense was not alleged defendant did not prepare and had no reason to prepare to contest the falsity of the pretense. This contention is unrealistic. Although the Third Amended Information was technically insufficient for failure to specifically and distinctly allege the falsity of the pretension it by implication and innuendo apprised defendant that the State could be expected to adduce evidence on the issue. The idea that the technical insufficiency of the information misled defendant into foregoing the defense that termites were present, if in fact they were present to defendant's knowledge, is unacceptable. If as a practical matter either of the houses...

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12 cases
  • State v. Wise, 15170
    • United States
    • Missouri Court of Appeals
    • January 22, 1988
    ...not fatal unless the variance was material to the merits of the case and prejudicial to the defense of the defendant." State v. Jarrett, 481 S.W.2d 504, 509 (Mo.1972). These principles are applicable even though the state filed a bill of particulars. United States v. Francisco, 575 F.2d 815......
  • State v. Douglas
    • United States
    • Missouri Court of Appeals
    • November 24, 1986
    ...not fatal unless the variance was material to the merits of the case and prejudicial to the defense of the defendant." State v. Jarrett, 481 S.W.2d 504, 509 (Mo.1972). The defendant did not contend he was not in the mobile home on August 23, 1984, or any subsequent school day before October......
  • State v. Ellis
    • United States
    • Missouri Court of Appeals
    • April 7, 1986
    ...not fatal unless the variance was material to the merits of the case and prejudicial to the defense of the defendant." State v. Jarrett, 481 S.W.2d 504, 509 (Mo.1972). Also see State v. Sallee, 624 S.W.2d 184 In his brief, the defendant argues that because of the variances, his convictions ......
  • State v. Barnes
    • United States
    • Missouri Court of Appeals
    • May 10, 1974
    ...to defraud indicates a purpose or design to deprive someone of a lawful right, interest or property by fraudulent means. State v. Jarrett, 481 S.W.2d 504, 507(2--3) (Mo.1972); State v. Garner, 432 S.W.2d 259, 260(2) (Mo.1968); State v. Harris, supra, 313 S.W.2d at 670(5). The Information st......
  • Request a trial to view additional results

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