State v. Kleine
| Decision Date | 05 June 1924 |
| Docket Number | 25247 |
| Parties | STATE v. KLEINE |
| Court | Missouri Supreme Court |
Rehearing Denied June 16, 1924.
Bass & Bass and Edw. E. Butler, all of St. Louis, and Chas. E Erd, for appellant.
Jesse W. Barrett, Atty. Gen. (Ellison A. Poulton, of Canton, of counsel), for the State.
Statement.
Appellant, Edwin F. Kleine, treasurer of the St. Clair Coal & Mining Company, a corporation organized under the laws of the state of Illinois, together with Frederick W. Kleine, John M. Brichler, president and secretary, respectively, of said company, and Milton B. Rosenheim, a clerk of the city of St. Louis, Mo., were jointly charged in an indictment filed in the circuit court of said city on the 2d day of December, 1921, with the crime of having obtained money by false pretenses, in that they did, on the 10th day of January, 1919, at the city of St. Louis aforesaid, with the intent to fraudulently, knowingly, designedly, and feloniously deceive, cheat, and defraud the said city of St. Louis, a municipal corporation, by means and by use of deception, out of 292,000 pounds of coal, of the value of $ 322.16, by forming a conspiracy and making deceptive, false, and fraudulent entries in a record book of said city, etc.
On April 10, 1922, on motion of above defendants, Edwin F. Kleine et al., a severance and separate trial was granted to each of said defendants. A change of venue was awarded defendant Edwin F. Kleine, and his case was set for hearing in Division No. 11 of the circuit court aforesaid. He was arraigned, and entered a plea of not guilty. The trial was commenced on October 17, 1922, and on the 20th of said month the jury returned into court the following verdict:
'We, the jury in the above-entitled cause, find the defendant guilty of obtaining money by false pretenses, as charged in the indictment, and assess the punishment at imprisonment in the penitentiary for (2) years.
'Henry M. Shnietz, Foreman.'
Motions for a new trial and in arrest of judgment were filed and overruled. Thereafter judgment was rendered and sentence pronounced on appellant in conformity to said verdict, and an appeal was granted him to this court.
There was substantial evidence offered on the part of the state tending to prove that the city of St. Louis entered into a written agreement with said St. Clair Coal & Mining Company, an Illinois corporation, for coal to be delivered and furnished said city at Bissell's Point therein from September 1, 1918, for a period not exceeding 12 months; that the coal received from said company for the city was weighed by the latter at its station, Bissell's Point; that coal was shipped to that place between the 24th day of December and January 10, 1919, from said coal company's mines in Illinois, and weighed by the Southern Weighing and Inspection Bureau on the Louisville & Nashville Railroad scales in East St. Louis, Ill., where the gross weight and tare were stenciled on each car of coal, and were recorded on tape; that the tare was subtracted from the gross weight of said coal; that the above figures were then copied into a book of permanent record; that these tapes on which the figures were first recorded were lost or mislaid; that the same cars, identified by number, were handled by the St. Louis Terminal Railroad Association between December 23, 1918, and January 10, 1919, and delivered to the city of St. Louis at Bissell's Point, in said city; that the net weight of coal received by the city's records, hereafter mentioned, differed materially, car by car, from the net weight recorded by the Southern Weighing and Inspection Bureau for the same cars during said period; that the city's weights, as recorded in its book, hereafter mentioned, indicated several hundred pounds of coal more on each car than those weights recorded on the Louisville & Nashville scales; that Milton B. Rosenheim, one of the original defendants herein, was employed by the city of St. Louis as a clerk at Bissell's Point during December, 1918, and January, 1919; that the duties of said Rosenheim, required him to correctly take down and enter in a memorandum weight book of said city the gross weight and tare of coal cars as they were called out by the weigher for said city, and to write in said book kept for the purpose the number of pounds of coal contained in each car. weighed at Bissell's Point, that was delivered by said coal company; that said book was known as the car record book; that from this book of original entries copies were made, and entered in a book kept for that purpose at Bissell's Point; that the coal delivered to aid city by the St. Clair Coal & Mining Company came over the Louisville & Nashville Railroad, where it was weighed at East St. Louis aforesaid; that the basis of the payment by the city for coal delivered by said coal company was according to the weight, ascertained by its employes at Bissell's Point, and entered in said book; that said Milton B. Rosenheim, in putting down the weights as they were called out to him by the weigher aforesaid, intentionally made them show that they were in excess and above the actual and true weight of the coal delivered, and as called out to him by said weigher; that Edwin F. Kleine, the appellant herein, treasurer of said coal company, made and entered into an agreement with said Rosenheim, whereby the latter was to receive a stated and fixed compensation for the fictitious excess coal charged to the city of St. Louis, and as having been delivered to said city; that the officers of said city relied upon the record kept by Rosenheim aforesaid, believed the same to be correct, and paid out the city's money to said company for coal which its officers aforesaid knew, had never been delivered to said city; that the St. Clair Coal & Mining Company made the Central National Bank of St. Louis its assignee and attorney in fact to collect the claims of said coal company against said city.
The testimony of defendant Brichler shows that in the latter part of 1917 the defendant Edwin F. Kleine told him that he had fixed it so there would be no more loss at the waterworks; that he had offered Rosenheim $ 25 a month to give the coal company weights equal with the railroad weights, and offered $ 1 per ton for every ton he increased the weight over the railroad weight.
Raymond Soraghan testified that he was a clerk in the office of the coal company on the twelfth floor of the Central National Bank Building in St. Louis, Mo.; that he was the bookkeeper for said coal company from March, 1918, until August, 1919; that he received instructions from defendant Edwin F. Kleine as to how to keep said books; that Rosenheim was the weigher of the city at Bissell's Point, and Edwin F. Kleine gave him the name of 'Stein,' for Rosenheim; that on January 11, 1919, under the head of expense, his books indicated that there had been paid to the weigher at Bissell's Point $ 137. This witness further testified:
Witness further testified that payments were made by the city to the coal company twice a month; that he took the railroad weight from the city weight, and divided the same by 2,000, to ascertain how much should be paid Rosenheim; that the money paid Rosenheim was for the excess tonnage in coal received at Bissell's Point over the railroad weight; that the above check for $ 137 was payable to cash, and that he (witness) cashed the check and turned the money over to Rosenheim; that Edwin F. Kleine was in St. Louis before he went to the army after he (witness) commenced keeping the books in March, 1918;...
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