State v. Loesch

• Decision Date: 30 November 1915
• Docket Number: No. 18717.,18717.
• Citation: 180 S.W. 875
• Parties: STATE v. LOESCH.
• Court: Missouri Supreme Court

180 S.W. 875

STATE v. LOESCH.

No. 18717.

Supreme Court of Missouri, Division No. 2.

November 30, 1915.

Appeal from Circuit Court, Cole County; J. G. Slate, Judge.

Enos Loesch was convicted of obtaining a deed by false pretenses, and appeals. Affirmed.

Pope & Lohman and A. T. Jumm, all of Jefferson City, for appellant. John T. Barker, Atty. Gen., and Lee B. Ewing, Asst. Atty. Gen., for the State.

WALKER, J.

In an information filed by the prosecuting attorney of Cole county defendant was charged, under section 4765, R. S. 1909, with having obtained a deed to certain real estate by means of false pretenses. Upon a trial he was convicted and sentenced to two years' imprisonment in the penitentiary, from which judgment he appealed to this court. Pending the determination of same here he gave bond, which was approved, and a supersedeas was granted.

Defendant represented to Reavis and his brother, the prosecuting witnesses, that he owned a farm in Pike county containing 156 acres to which he had a good title, and which was worth $45 an acre, but was incumbered for $2,700; that the equity therein was worth $3,000; that he could not pay the incumbrance then due, and to avoid the loss of the land he proposed to trade the equity in this farm for a lot having a brick store building thereon which belonged to Reavis and his brother in Milburn, Okl. After further parley at different times in regard to the proposed trade, they agreed to meet in Jefferson City on a day certain and deposit deeds to each other of their respective lands in escrow with W. C. Irwin, said deeds to be by him delivered to the parties entitled thereto upon each being satisfied as to the title. Reavis and his brother deposited a deed to their property in Oklahoma with Irwin as agreed, but defendant deferred so doing, and insisted that he had a good title to the farm, and the Reavis deed was allowed to remain in escrow with the understanding that it was to be delivered to defendant when the latter furnished a good deed to the Pike county land. Defendant delayed delivering his deed, and the Reavises came to Jefferson City intending to go to Pike county and see the land. Defendant met them at a hotel and discouraged them, saying that the roads were muddy, and that it would be almost impossible for them to get out to the farm. He reassured them that he had good title to the land, and insisted that the deal was all right. Either at that time or later he told them he had bought the land from one Eardman and had paid for it, and the title was good, but that Eardman had not delivered a deed to him, and he wanted the Reavises to accept a deed direct from Eardman. He assured them that the latter had good title, and that such a conveyance would be all right. The Reavises then consented to accept a deed direct from Eardman, and so informed defendant and W. C. Irwin. Later defendant delivered a deed to W. C. Irwin, signed by Eardman and wife, purporting to convey the title in the Pike county farm to O. S. and Lorraine Reavis, the names of Reavis and his brother. In the meantime Irwin received information that Eardman had no title to the land, and notified the Reavises. They directed him not to deliver their deed until things were straightened out. Defendant was then in Mexico, Mo. He called Irwin up by phone and assured him that the title was all right; but Irwin, still questioning it, mailed the Eardman deed to him at Mexico. Defendant thereafter repeatedly insisted that his title to the land was all right, and finally prevailed upon the Reavises to accept the deed; whereupon the deed from them to the Oklahoma property was turned over to him. The deed which had been made by them to defendant was dated March 18, 1914. At that time the Reavises had not learned that defendant had no title to the Pike county land. Ten days after the date of the deed to the defendant he executed a mortgage on the Oklahoma lot and building to the Weber Motor Car Company for $900 to secure the payment of a note he had given to that company. Soon thereafter the Reavises discovered that Eardman never had any title to the land, and that their deed purporting to have been made by him was worthless; that the only pretense of a claim, and it was nothing more, which Eardman had to the Pike county land was by reason of an agreement between him and one Brown, the real owner of the land. This agreement was that Brown would trade the Pike county land to Eardman for land the latter claimed to own in Audrain county. Brown made this agreement in good faith and placed his deed in escrow to be delivered to Eardman when the latter delivered to him a deed to the Audrain county land with an abstract showing good title. This contract was never carried out, because Eardman had no title to any land in Audrain county. While Brown's deed was in escrow Eardman made an agreement to trade his equity in the Pike county land, which he never owned, to defendant and two others named Wadley and Cuthbertson, for a small grocery stock of nominal value. The defendant only claimed to own one-third of the grocery stock, but Eardman made and delivered a deed to the Pike county land to him in consideration of his trade with him and the two others. One of them, Wadley, knew that Eardman had no title to the land, and told defendant not to put the deed on record. Defendant knew that Eardman had no deed to the Pike county land, and the possibility of defendant ever acquiring an interest therein was dependent upon Eardman owning land in Audrain county, and thereafter trading it to Brown, whereupon the deed in escrow from Brown would be delivered. With a full knowledge of these facts defendant wrote to the Reavises telling them that he owned the Pike county land, and wanted to trade it for their Oklahoma property worth at least $2,000. Defendant has never denied that he made the representation to the Reavises that he had good title to the land; his sole defense being that he thought he had title thereto, in that he believed Eardman's title was good. His excuse for having the latter make the deed direct to the Reavises was that it saved expense. He urges that error was committed in that the information states no offense; that he was not arraigned; that the court erred in the admission and rejection of testimony; that the instructions are incorrect and prejudicial; and that a demurrer should have been sustained to the evidence.

1. Information.—Defendant complains of the insufficiency of the information by an objection made at the beginning of the trial to the introduction of any testimony on the part of the state. Challenging the validity of a criminal charge in this manner has never been permitted in this state. The insufficiency of an indictment or information can only be raised by a demurrer or a motion to quash, which demurrer or motion must, as the statute (section 5112, R. S. 1909) expressly requires, distinctly specify the grounds therefor or be disregarded.

The repeated efforts of counsel for defendant to assail the integrity of indictments or informations by oral objections thereto, and thus avoid the requirements of the statute, have frequently been condemned by this court and termed "innovations in the practice which will not be tolerated." State v. Gregory, 178 Mo. loc. cit. 56, 76 S. W. 970; State v. Duncan, 116 Mo. loc. cit. 307, 22 S. W. 699; State v. Meyers, 99 Mo. loc. cit. 112, 12 S. W. 516; State v. Risley, 72 Mo. loc. cit. 611.

Whatever review is made, therefore, of the information will not be on account of defendant's objections to the admission of testimony, but in compliance with our duty under section 5312, R. S. 1909, "to proceed without delay to render judgment upon the record," of which the information forms a part. State v. Anderson, 228 Mo. loc. cit. 441, 128 S. W. 734; State v. George, 221 Mo. loc. cit. 523, 120 S. W. 35.

The language employed in the information in stating the ownership of the property of which the prosecuting witnesses were charged to have been defrauded is as follows:

"That the said Enos Loesch, designing and intending to cheat and defraud 0. S. Reavis and Lorraine Reavis out of a certain piece of real estate then and there owned by them consisting of a brick store building located in the town of Milburn, Okl., and of the value of $2,500, and for the purpose etc., did. * * *"

Thereafter the property is designated as "their brick building." It appears from the record that the words "then and there owned by them" were not in the original information, but were permitted by the trial court to be inserted therein by amendment during the trial, and that the information as amended was not thereafter verified. If any question can properly be raised here as to the regularity of said amendment, it will suffice to say that, under the liberal provisions of our statute (section 5061, R. S. 1909), any affidavit or information may be amended in matter of form or substance at any time by leave of court before the trial and on the trial as to all matters of form and variance, at the discretion of the court when the same can be done without prejudice to the substantial, rights of the defendant on the merits. Therefore, whether this amendment was made before or during the trial, it could in no wise have been prejudicial to the substantial rights of the defendant. La State v. Darling, 216 Mo. loc. cit. 464, 115 S. W. 1002, 23 L. R. A. (N. S.) 272, 129 Am. St. Rep. 526, the prosecuting attorney, in an information charging murder, was permitted to amend same as to matters of form or substance before the trial, and such amendment. when made, was not reverified. The amendment was held to be proper, and that there was no necessity for a new affidavit, which was no part of the information.

The real estate out of which the prosecuting witnesses were alleged to have been defrauded is described in general terms in the information. This description, however, is identical with that employed by ...