State v. Lichliter

• Citation: 8 S.W. 720,95 Mo. 402
• Parties: The State v. Lichliter, Appellant
• Decision Date: 04 June 1888
• Court: Missouri Supreme Court

8 S.W. 720

95 Mo. 402

The State v. Lichliter, Appellant

Supreme Court of Missouri

June 4, 1888

Appeal from St. Louis Criminal Court. -- Hon. Henry D. Laughlin Judge.

Affirmed.

Taylor & Pollard for appellant.

(1) A defendant may, at any time before he announces ready for trial, withdraw his plea of not guilty and move to quash the indictment. Nicholls v. State, 2 South. [N. J.] 539; Commonwealth v. Chapman, 11 Cush. 422; Rex v Heane, 4 B. & S. 433; Rex v. Wilson, 6 Q. B 620; Rex v. James, 12 Cox C. C. 127. (2) The indictment shows on its face that the crime charged was committed in Jasper county, and hence the criminal court of the city of St. Louis had no jurisdiction to try the case. State v. Dennis, 80 Mo. 594; State v. Schaeffer, 89 Mo. 280. (3) The testimony of an expert as to his conclusions drawn from defendant's books should not have been received. Whar. Crim. Evid., secs. 405, 411, and cases thereunder cited. (4) Testimony of defendant's actions weeks and months after the commission of the crime charged should not have been received. (5) The sixth instruction asked by defendant was the law, and the court in modifying it rendered it entirely unintelligible and meaningless to defendant's harm. Greer v. St. Louis, 80 Mo. 555; Clark v. Kitchen, 52 Mo. 316; Dunn v. Dunaker, 87 Mo. 597; Young v. Ridenbaugh, 67 Mo. 574. (6) The proof at the trial failed to show that the crime charged was committed in St. Louis; but the proof subsequently offered clearly showed that it was committed, if at all, in Joplin, Jasper county, and hence the trial court had no jurisdiction. State v. Schaeffer, 89 Mo. 280; State v. Dennis, 80 Mo. 594; Calkins v. Hellman, 47 N.Y. 449; Benjamin on Sales, sec. 140, et seq.; Maxwell v. Brown, 39 Me. 98; Frostburg v. Glass Co., 9 Cush. 115; Rodgers v. Phillips, 40 N.Y. 519; 2 Bishop on Crim. Law [7 Ed.] sec. 486.

B. G. Boone, Attorney General, A. C. Clover, Circuit Attorney, and C. O. Bishop for the state.

(1) There was no error in refusing to permit appellant to withdraw his plea and move to quash. The indictment had been pending five months, a mistrial had been had and the cause was called a second time for trial. Appellant's action was clearly to obtain delay. (a) Motions to quash have not been favored by this court. "The power of quashing indictments is a discretionary one, and very rarely to be exercised. The sufficiency of an indictment is properly tested by demurrer or motion in arrest, to which the defendant should in general be left in indictments for felonies. State v. Rector, 11 Mo. 28; State v. Bohannon, 21 Mo. 490, 491; State v. Conrad, 21 Mo. 271. (b) While no power can prevent the trial court from quashing an indictment at any stage of the proceedings, "the better doctrine is believed to be that, in the absence of statutory changes of common-law rules, the motion has no relation to any plea, that it should be more favored at an early stage of the proceedings than at a later, and that whenever presented the court will exercise its discretion whether or not to hear it then." 1 Bishop's Crim. Proc. [7 Ed.] sec. 762. (c) The position of appellant is precisely the same as if his motion to quash had been formally overruled, and the rule seems to be well settled in this state that such action is not reviewable here unless followed and presented by motion in arrest. (2) The indictment is sufficient. 1 Bishop Crim. Proc., sec. 556; 1 Whart. Prec., sec. 528. (3) The testimony that defendants secreted their property was admissible as going to show their intent in obtaining the goods. State v. Dennis, 80 Mo. 589. (4) The record shows that the offence was committed in the city of St. Louis. The delivery of the goods in the city of St. Louis to the carrier, consigned to defendants, was a delivery of the goods to the consignees. Upon such delivery, Cupples & Company parted with the possession, and thereafter had no right or title, save the right of stoppage in transitu. State v. Dennis, 80 Mo. 594; Norris v. State, 25 Ohio St. 217.

OPINION

Norton, C. J.

Defendant and William H. Fallis were jointly indicted in the criminal court of the city of St. Louis at its July term, 1881, and charged with obtaining goods in the city of St. Louis under false pretenses. At the May term, 1882, of said court, a trial was had resulting in the conviction of the defendants. Fallis obtained a new trial, and Lichliter, after making an unsuccessful motion for new trial, appealed to the St. Louis court of appeals, from which court the cause has been transferred to this court.

It appears from the record that, on the fifth of December, 1881, defendants were arraigned, pleaded not guilty, and were put upon trial, which resulting in a mistrial, the cause was continued and specially set for trial on the twentieth of February, 1882, at which time defendants appeared and filed a motion for a special venire of citizens from the county, and the same day asked leave to withdraw the plea of not guilty, and to file a motion to quash; the court refused to allow this for the reason that said application was made too late. This action of the court was excepted to at the time and is assigned for error here. It is said in case of State v. Rector, 11 Mo. 28, that "the power of quashing indictments is a discretionary one, in all cases. * * * The sufficiency of an indictment is properly tested by a demurrer or motion in arrest. In indictments for lesser offences, below the grade of felony, the court may in its discretion quash when the indictment is plainly defective, but in indictments for felonies, the defendant should, in general, be left to his demurrer or a motion in arrest." See also, State v. Bohannon, 21 Mo. 490; State v. Conrad, 21 Mo. 271. In view of the ruling made in the cases above cited, we are not prepared to say that the court committed reversible error in refusing the request of defendants to withdraw the plea of not guilty and file a motion to quash, and this is especially so if the indictment preferred is sufficient in law, as we think the indictment in this case is. It is based upon section 1335, Revised Statutes. It lays the venue of the offence at the city of St. Louis, state of Missouri, it distinctly alleges the false pretense upon which the defendants obtained the goods, negatives the truth of the pretense, and avers that the owners of the goods, relying upon its truth, parted with their property, particularly describing it and stating its value. It is in conformity with the precedents laid down in 1 Wharton's Precedents.

It is also insisted that the judgment should be reversed on the ground that the evidence shows that the offence, if committed at all, was committed in Jasper county. The record is very voluminous, and as no objection has been interposed to the abstract of the evidence furnished by respondent, we shall adopt it as being correct; and so much of it as is material to the question is as follows: In the fall of 1880, the traveling salesman of the firm of Samuel Cupples & Company of St. Louis, met defendants in the town of Joplin, Jasper county. He was informed by them that they were about to form a business partnership in Joplin, and desired to purchase a carload of wooden and willowware from said Cupples & Company on a credit of sixty days. The salesman told them that in order to obtain credit it would be necessary for them to furnish his firm with a statement of their financial condition. Such a statement, setting forth their assets and liabilities, was made in writing in the name of Fallis & Lichliter, which was signed by E. A. Fallis and mailed from Joplin, and received by Cupples & Company in the city of St. Louis. A written order for the goods specified in the indictment was also received from Fallis & Lichliter. Cupples & Company, being satisfied with said statement, which represented the assets of the firm to be largely in excess of their liabilities, and relying upon its truth, filled the order, and delivered the goods to the St. Louis & San Francisco Railway Company, at their depot in the city of St. Louis, on the twenty-seventh of October, 1880, addressed and consigned to Fallis & Lichliter at Joplin, the said railway company agreeing, by a bill of lading acknowledging the receipt of the goods from said Cupples & Company, to deliver the same to Fallis & Lichliter at Joplin, which was done a few days thereafter. Cupples & Company drew a draft on Fallis & Lichliter for the amount of the bill at sixty days from the date of delivery, which was accepted. Before the maturity of the draft in December following, Fallis & Lichliter made an assignment, paying but a few...