State v. Mandell

• Decision Date: 09 October 1944
• Docket Number: 38702
• Citation: 183 S.W.2d 59,353 Mo. 502
• Parties: State v. Samuel J. Mandell, Appellant
• Court: Missouri Supreme Court

183 S.W.2d 59

353 Mo. 502

State v. Samuel J. Mandell, Appellant

No. 38702

Supreme Court of Missouri

October 9, 1944

Rehearing Denied November 6, 1944.

Appeal from Circuit Court of City of St. Louis; Hon. William S Connor, Judge.

Affirmed.

Dubinsky & Duggan for appellant.

(1) The venue in this cause was improperly laid in the City of St. Louis, State of Missouri. State v. Schaefer, 89 Mo 271, 1 S.W. 293; State v. Fluesmeier, 318 Mo. 803, 1 S.W.2d 133; State v. Pate, 188 S.W. 139, 268 Mo. 431; Detchard v. State, 57 S.W. 813; 22 C.J.S., p. 283, sec. 185 (K); 22 C.J.S., pp. 284, 286; State v. Smith, 162 Iowa 336; Burton v. United States, 196 U.S. 283. (2) The honorable judges in Division No. 2 in this court in its opinion held that although the evidence shows that the checks in question were cashed by depositing the same to the account of Henry B. Schiller Realty Co. or to the account of S. J. Mandell with the Delmar Bank, University City, Mo., that the title to said checks did not pass to the Delmar Bank, but that said Delmar Bank was acting as agent for this appellant in transmitting the same to the Tower Grove Bank & Trust Co. in St. Louis, and for that reason the venue was in the City of St. Louis; such holding in the divisional opinion is erroneous and is contrary to the rulings in the following cases: Kavanaugh v. Farmers Bank, 59 Mo.App. 540; Mudd v. Merchants Bank of Hunneywell, 162 S.W. 314, 175 Mo.App. 398; Ayres v. Bank, 79 Mo. 421; Flannery v. Coates, 80 Mo. 445; Bank v. Refrigerating Co., 236 Mo. 407, 139 S.W. 545; Haas v. Kings County Fruit Co., 183 S.W. 676; American Bank of DeSoto v. Peoples Bank of DeSoto, 255 S.W. 193; National City Bank of St. Louis v. Macon Creamery Co., 46 S.W.2d 127, 329 Mo. 639; Mattes v. Cantley, Comr. of Finance, 39 S.W.2d 412; Bank of Republic v. Republic State Bank, 42 S.W.2d 27; State ex rel. American Cent. Ins. Co. v. Gehner, Assessor, 9 S.W.2d 621, 320 Mo. 901; State v. Smith, 162 Iowa 336; Burton v. United States, 196 U.S. 283. (3) There is no provision in Section 3953, R.S. 1939 for the filing of an amended substitute information in lieu of an indictment. Sec. 3953, R.S. 1939. (4) If it can be said that Section 3953, R.S. 1939 permits the filing of more than one substitute information in lieu of an indictment, then as a prerequisite of the filing of an amended substitute information there should and must be a ruling by the trial court that the substitute information was insufficient as to form and substance; absent such ruling, no amended substitute to the substitute information could be filed by leave. Sec. 3953, R.S. 1939; State v. Wright, 339 Mo. 41, 95 S.W.2d 1159; State v. Barr, 326 Mo. 1095, 34 S.W.2d 477; State v. Fletcher, 227 Mo.App. 321, 51 S.W.2d 170. (5) The amended substitute information attempts to and does change the charges against this defendant, and in addition thereto, charges him with new and additional offenses not contained in the indictment. State v. Fletcher, 227 Mo.App. 321, 51 S.W.2d 170; State v. Wright, 339 Mo. 41, 95 S.W.2d 1159; State v. Hancock, 320 Mo. 327, 7 S.W.2d 273. (6) A defendant cannot, in one count, be charged with separate, distinct and complete offenses which are not cognate and related to each other, and occurring on different dates. State v. Link, 315 Mo. 192, 286 S.W. 12; State v. Brown, 317 Mo. 361, 296 S.W. 125; State v. Christian, 253 Mo. 382, 161 S.W. 736; State v. Carrigan, 210 Mo. 351, 109 S.W. 553; State v. Guye, 299 Mo. 348, 252 S.W. 955; State v. Gantt, 33 S.W.2d 970; State v. Kellman, 343 Mo. 762, 123 S.W.2d 70; State v. Sherman, 137 Mo.App. 70, 119 S.W. 479; State v. Hall, 181 S.W. 1135; State v. Morelock, 291 S.W. 1078; State v. Stapp, 246 Mo. 338, 151 S.W. 971; State v. Jabluosky, 169 Mo.App. 328, 152 S.W. 390; State v. Preslar, 316 Mo. 144, 290 S.W. 142; State v. Collins, 297 Mo. 257, 248 S.W. 599; 22 C.J.S. 416. (7) The defendant is entitled to be fully informed of the offense and every element thereof, and nothing is to be left to intendment. Amend. 6, U.S. Constitution; Art. 2, Sec. 22, Mo. Constitution; State v. Crooker, 95 Mo. 389, 8 S.W. 422; State v. Chinn, 142 Mo. 507, 44 S.W. 245; State v. Adams, 308 Mo. 644, 274 S.W. 21; State v. Sherrill, 278 S.W. 992; State v. Schultz, 295 S.W. 535; State v. Barbee, 136 Mo. 440, 37 S.W. 119. (8) Where the prosecutrix advanced money, or paid money to the accused, at least partly on the promise of the accused that property would be delivered to the prosecutrix in the future, and partly on other promises such as a sale at a future profit, the defendant cannot be prosecuted nor charged with having obtained money under false pretenses. State v. Krouse, 171 Mo.App. 424, 156 S.W. 727; State v. Ruwwe, 242 S.W. 936; State v. Allison, 86 S.W. 958; State v. Petty, 119 Mo. 425, 24 S.W. 1010; Reed v. Cooke, 331 Mo. 507, 55 S.W.2d 275; Wilson v. Jackson, 167 Mo. 135, 66 S.W. 972. (9) The evidence established that all the transactions were of different dates, involving different and separate parcels of real estate, and were separate, distinct and completed transactions, independent of each other, not cognate to each other, but a conviction of either of said transactions would not be a bar to the future prosecution of this defendant. State v. Link, 315 Mo. 192, 286 S.W. 12; State v. Brown, 317 Mo. 361, 296 S.W. 125; State v. Christian, 253 Mo. 382, 161 S.W. 736; State v. Carrigan, 210 Mo. 351, 109 S.W. 553; State v. Guye, 299 Mo. 348, 252 S.W. 955; State v. Gantt, 33 S.W.2d 970; State v. Kellman, 343 Mo. 762, 123 S.W.2d 70; State v. Sherman, 137 Mo.App. 70, 119 S.W. 479; State v. Hall, 181 S.W. 1135; State v. Morelock, 291 S.W. 1078; State v. Stapp, 246 Mo. 338, 151 S.W. 971; State v. Jabluosky, 169 Mo.App. 328, 152 S.W. 390; State v. Preslar, 316 Mo. 144, 290 S.W. 142; State v. Collins, 297 Mo. 257, 248 S.W. 599; 22 C.J.S. 416. (10) There was a material variance and failure of proof. State v. Smalley, 252 S.W. 443; State v. Woerth, 256 S.W. 456; State v. Zingher, 302 Mo. 650, 259 S.W. 451. (11) The court erred in giving Instruction 2 because said instruction assumed facts which were not in evidence; further, that said instruction was broader than the evidence, and that said instruction submitted for the jury's consideration an agreement made between the prosecutrix and the defendant relating to a future event; and that the opinion rendered in Division No. 2 of this court completely failed to pass upon the error in the giving of said instruction. State v. Long, 131 S.W.2d l.c. 556; State v. Farmer, 111 S.W.2d l.c. 79; Reed v. Cooke, 55 S.W.2d l.c. 278; State v. Hollbrook, 289 S.W. 561. (12) The court erred in giving Instruction 4 because said instruction was not supported by any evidence in this cause (in submitting to the jury a charge of dealing of similar acts with persons other than prosecutrix). State v. Bayne, 88 Mo. 609; State v. Sarony, 95 Mo. l.c. 355; State v. Young, 183 S.W. 308; State v. McBrien, 178 S.W. 489; State v. Palmberg, 97 S.W. l.c. 568; State v. Duncan, 80 S.W.2d l.c. 154; State v. Reynolds, 131 S.W.2d l.c. 556; State v. Farmer, 111 S.W.2d l.c. 79. (13) The court erred in giving Instruction 5 for the reasons: that said instruction assumes that the defendant made false representations, pretenses and statements without submitting such disputed fact for the jury's consideration. State v. Long, 131 S.W.2d l.c. 556. (14) Said instruction erroneously submitted for the jury's consideration the "capacity of Maria Springer" and was an unfair comment on the evidence in this cause, and was not supported by evidence for the submission of said issue for the jury's consideration, and that said instruction was broader than the evidence. State v. Farmer, 111 S.W.2d l.c. 79.

Roy McKittrick, Attorney General, and Frank W. Hayes, Assistant Attorney General, for respondent.

(1) The court did not err in permitting the respondent to file its amended substitute information or in overruling appellant's motion to set aside the order granting the respondent leave to file said amended substitute information or in overruling appellant's motion to strike the said amended substitute information. Secs. 3898, 3953, R.S. 1939; State v. Cain, 31 S.W.2d 559; State v Craft, 23 S.W.2d 183; State v. Dixon, 253 S.W. 476; State v. Fletcher, 51 S.W.2d 170; State v. Hall, 279 S.W. 102; State v. Lloyd, 7 S.W.2d 344; State v. McPhearson, 92 S.W.2d 129; State v. Powell, 66 Mo.App. 598; State v. Quinn, 136 S.W.2d 985; State v. Riddle, 23 S.W.2d 179; State v. Settle, 46 S.W.2d 882; State v. Tippett, 296 S.W. 132. (2) The amended substitute information charges the same offense set up in the original indictment. State v. Wren, 62 S.W.2d 853. (3) The amended substitute information was not duplicitous. Delcher v. State, 158 A. 37; Hurd v. State, 170 So. 775; McLendon v. United States, 14 F.2d 12; Pierce v. State, 38 S.W.2d 589; Sconyers v. United States, 54 F.2d 68; Spears v. State, 294 S.W. 66; State v. Boone, 289 S.W. 575; State v. Clark, 266 P. 37; State v. Flynn, 119 Mo.App. 712; State v. Pedigo, 190 Mo.App. 293; State v. Rambow, 95 Mo. 462; State v. Robinson, 259 P. 691; State v. Rosenheim, 261 S.W. 95. (4) The amended substitute information clearly informs the appellant of the offense charged. State v. Eason, 18 S.W.2d 71; State v. Wren, 62 S.W.2d 853. (5) An information charging false statements or pretenses as to existing fact is sufficient, although coupled with a promise to do something in the future. Cook v. State, 94 S.W.2d 386; Com. v. Moore, 12 S.W. 1066; State v. Parkinson, 41 P. 1095; Pearce v. State, 27 S.W.2d 26; People v. Winslow, 39 Mich. 505; Randall v. United States, 113 F.2d 945; State v. Claggett, 289 F. 532; State v. Craft, 126 S.W.2d 177; State v. Gordon, 42 P. 346; State v. Holton, 34 S.E....