State v. Marion

• Decision Date: 20 June 1911
• Citation: 138 S.W. 491,235 Mo. 359
• Parties: STATE v. MARION.
• Court: Missouri Supreme Court

138 S.W. 491

235 Mo. 359

STATE v. MARION.

Supreme Court of Missouri, Division No. 2.

June 20, 1911.

1. FALSE PRETENSES (§ 33)—OBTAINING CONVEYANCE — INFORMATION—NAME OF GRANTEE.

Since it is necessary to the offense of obtaining a deed by false representations, in violation of Rev. St. 1899, § 1927, that the deed shall contain the name of the grantee, an information for such offense, failing to state the name of the grantee in the deed, is fatally defective.

2. FALSE PRETENSES (§ 34) — OBTAINING DEED—INFORMATION—DELIVERY.

An information, charging the obtaining of a deed by false representations, and alleging that defendant feloniously, etc., and with intent then and there to cheat and defraud the grantor, obtained the grantor's signature to a certain instrument, etc., sufficiently charged a delivery of the deed.

3. FALSE PRETENSES (§ 7)—REPRESENTATION — MATTERS OF OPINION — EXAGGERATED PRAISE.

An information for obtaining a deed by false pretenses alleged that defendant, a real estate agent, to carry out an exchange of land, represented to prosecutor that the land he was to receive in exchange was good strong land. 80 acres in cultivation that would raise 40 or 50 bushels of corn to the acre; that about 60 or 70 acres more was in timber and was as good if in cultivation; that the property was improved with a fair house and barn, and had some orchard, and was a good stock and grain farm worth $3,000. Held, that such representations were mere matters of opinion and exaggerated praise, and could not be made the basis of a prosecution for false pretenses.

4. CRIMINAL LAW (§ 97) — JURISDICTION — PLACE OF OFFENSE—FALSE PRETENSES.

Where defendant was charged with having obtained a deed from prosecutor by false pretenses, and it appeared that the deed, when executed by prosecutor and placed in the mails directed to accused, was blank as to the grantee, and that such blank was not filled until after the deed was received by accused in Missouri, the offense, if any, was committed in Missouri, and not in Pennsylvania.

5. CRIMINAL LAW (§ 1206)—STATUTES—PUNISHMENT.

Rev. St. 1899, § 1927, relating to false pretenses, as amended in 1909 and made section 4565, Rev. St. 1909, providing, as amended, for punishment solely by imprisonment in the penitentiary, did not apply to a previously committed offense, as to which the section before amendment, providing for punishment in the penitentiary of not more than five years or by fine and imprisonment in the county jail, was applicable.

6. CRIMINAL LAW (§ 772)—INSTRUCTIONS—REFERENCE TO INFORMATION.

In a prosecution for false pretenses, an instruction, failing to inform the jury what representations the defendant was charged with making, but referring them to the information therefor, was erroneous.

7. CRIMINAL LAW (§ 393)—EVIDENCE—DEPOSITION OF ACCUSED — STATUTES—"FRAUDULENT CONVEYANCE."

Rev. St. 1909, § 6360, provides that when any person shall testify, either as a party or as a witness, in any suit or proceeding, his testimony shall not be used as evidence to prove any fact in any suit or prosecution against him for any penalty for violating any law in relation to fraudulent conveyance of property. Held, that the term "fraudulent conveyance," as so used, referred only to fraud of a grantor or vendor against the right of his creditors or purchasers from him, and that such section did not preclude the introduction in evidence, in a prosecution for false pretenses in securing a deed, of a deposition given by him in a civil suit to set aside a deed wherein he did not object to testifying on the ground that his answers might incriminate him.

Appeal from Circuit Court, Barry County; F. C. Johnston, Judge.

W. E. Marion was convicted of obtaining a deed under false representations, and he appeals. Reversed and remanded.

The defendant was convicted in the circuit court of Barry county for a violation of section 1927, R. S. 1899, and sentenced to two years in the penitentiary. The information was filed March 21, 1910, and charged that the defendant on the ____ day of March, 1909, obtained the signature of David Dimit to a warranty deed conveying said Dimit's interest in eight lots in Dimit's addition to Monett in Lawrence county, by false representations as to 200 acres of land in Stone county, which were given in exchange to Dimit for the lots.

The information is as follows (omitting caption): "James Talbert, prosecuting attorney within and for the county of Barry and state of Missouri, acting herein under his oath of office and based upon his best information and belief, informs the court that W. E. Marion, on the ____ day of March, 1909, at and in the county of Barry in the state of Missouri, did then and there feloniously, designedly, knowingly, and fraudulently, with intent then and there to cheat and defraud one David Dimit, falsely pretend, represent, and state to the said David Dimit that the owner of the Stone county land, meaning certain land in Stone county, Mo., hereinafter described, has 200 acres of good strong land, 80 acres in cultivation that will raise 40 or 50 bushels of corn to the acre, and about 60 or 70 acres more in timber that is as good if in cultivation, fair house and barn, some orchard, in fact, a good stock and grain farm that is worth $3,000.00; that he (meaning the owner of the Stone county land) offered to take the lots belonging to the said David Dimit and $200.00 cash, the said David Dimit to assume a $1,500.00 mortgage on the Stone county land; that the said W. E. Marion had made the owner of said land a $1,500.00 ten-year loan; that there was about $100.00 accrued interest due; that it was a good trade for the said David Dimit; and that he, the said W. E. Marion, could rent said land and it would bring an income all the time. And the said David Dimit, believing and relying upon the said false and fraudulent representations and pretenses so made as aforesaid by the said W. E. Marion to be true and being deceived thereby, was induced by reason thereof to then and there sign, acknowledge, and deliver to the said W. E. Marion a warranty deed conveying all the right, title, and interest of the said David Dimit in and to the following described land, to wit: Lots 7, 8, and 12 in block 1, lots 6, 7, and 8 in block 2, and lots 3 and 4 in block 3, all in Dimit's addition to Monett, in Lawrence county, Missouri, said lots being then and there the property of the said David Dimit, and of the value of $875.00; and the said David Dimit, believing and relying upon the said false pretenses and representations so made as aforesaid by the said W. E. Marion, was induced by reason thereof to accept, in exchange for the said deed of the said David Dimit above described, a deed from one W. White purporting to convey to the said David Dimit the said 200 acres of land in Stone county, Missouri, described in said deed of W. White as follows, to wit: The E. ½ of the N. E. ¼ and the S. W. ¼ of the N. E. ¼ and the N. W. ¼ of the S. E. ¼ and the N. E. ¼ of the S. W. ¼, section No. 32, township No. 22, range No. 24—said deed of W. White purported to be subject to a mortgage or deed of trust for $1,500.00 and a commission deed of trust (amount not stated) which the said David Dimit, as grantee in said deed, assumed and agreed to pay. And the said W. E. Marion, by means of the said false pretenses and representations so made as aforesaid to the said David Dimit, which false pretenses and representations were then and there believed and relied upon by the said David Dimit, did then and there feloniously, designedly, knowingly, and fraudulently, with the intent then and there to cheat and defraud the said David Dimit, obtain the signature of the said David Dimit to a certain instrument in writing, to wit, the warranty deed of the said David Dimit above mentioned conveying all the right, title, and interest of the said David Dimit in and to the said lots in Dimit's addition to Monett, in Lawrence county, Missouri; whereas, in truth and in fact, the said statements, representations, and pretenses were wholly false and fraudulent, all of which the said W. E. Marion then and there well knew; whereas in truth and in fact, the said 200 acres of Stone county land above described was not good strong land, but was poor thin land; whereas, in truth and in fact, there was not 80 acres of said land in cultivation that would raise 40 or 50 bushels of corn to the acre, but would probably raise 20 bushels to the acre under the most favorable circumstances; whereas, in truth and in fact, there were not 60 or 70 acres more of said lands in timber that is as good if in cultivation; whereas, in truth and in fact, there were not a fair house and barn and some orchard on said lands, but there was a very poor house and barn practically worthless for the purposes for which they were built and no orchard whatever; and whereas, in truth and in fact, the said 200 acres of Stone county land was not then a good stock and grain farm that was worth $3,000.00, but was a poor mountain farm not worth over $1,000.00 or $1,200.00; and whereas, in truth and in fact, there was not only a $1,500.00 mortgage with accrued interest on said lands, but there was an additional mortgage or deed of trust on said lands of the amount of $375.00; and whereas, in truth and in fact, the said W. E. Marion nor no one else could rent said lands so that it would bring an income all the time—all of which the said W. E. Marion then and there well knew. And so the said W. E. Marion, by means and by use of the said false pretenses and representations made to the said David Dimit as aforesaid, did then and there feloniously, designedly, knowingly, and fraudulently cheat and defraud the said David Dimit; against the peace and dignity of the state. [Signed] James Talbert, Prosecuting Attorney."

The defendant was a real estate and loan agent at Monett in Barry county, and as such had previously sold for Dimit the greater...