State v. Martin

• Decision Date: 15 March 1910
• Citation: 126 S.W. 442,226 Mo. 538
• Parties: STATE v. MARTIN et al.
• Court: Missouri Supreme Court

126 S.W. 442

226 Mo. 538

STATE v. MARTIN et al.

Supreme Court of Missouri, Division No. 2.

March 15, 1910.

1. FALSE PRETENSES (§ 27) — INFORMATION — REQUISITES.

Under Rev. St. 1899, § 1927 (Ann. St. 1906, p. 1312), punishing every person who, with intent to defraud another, shall designedly, by any false pretense, obtain from any person any money, etc., an information must charge that the alleged false pretense was designedly used to obtain the money or other valuable thing.

2. FALSE PRETENSES (§ 29) — INFORMATION — REQUISITES.

Under Rev. St. 1899, § 2213 (Ann. St. 1906, p. 1410), punishing every person who, with intent to defraud, shall obtain from any other person money, etc., by any trick or deception or false or fraudulent representation, an information must set forth with particularity the trick, deception, or false and fraudulent representation, to the end that accused may be informed of the cause and nature of the same.

3. FALSE PRETENSES (§ 26) — INFORMATION — REQUISITES.

An information alleging that defendants with intent to defraud prosecutor, who had been cutting timber on the land of a third person, fraudulently represented and pretended to him that an associate of defendants was the owner of the land and entitled to receive a specified sum for the timber cut, that prosecutor believed the representations and was deceived thereby, and paid the associate a specified sum, and that defendants by such fraudulent representation obtained from prosecutor the specified sum with intent to defraud him, etc., charges the offense denounced by Rev. St. 1899, § 2213 (Ann. St. 1906, p. 1410).

4. FALSE PRETENSES (§ 4) — ACTS CONSTITUTING OFFENSE — DEFENSES.

Where defendants, knowing that prosecutor and his neighbors had cut timber on the land of a third person, formed the scheme that an associate should represent himself to prosecutor and his neighbors to be the landowner and demand payment for the timber, and the scheme was carried out, and money was obtained by reason thereof, the fact that prosecutor had been guilty of a crime in cutting the timber did not prevent the acts of defendants from constituting the offense of obtaining money by means of fraudulent representations.

5. CRIMINAL LAW (§ 829) — TRIAL — INSTRUCTIONS — REFUSAL OF INSTRUCTIONS COVERED BY THE CHARGE GIVEN.

It is not error to refuse a request to charge fully covered by the instructions given by the court of its own motion.

6. FALSE PRETENSES (§ 49) — EVIDENCE — SUFFICIENCY.

Evidence held to justify a finding that accused was one of the persons who entered into a conspiracy to obtain money of another by fraudulent representations and who actually obtained the money thereby, though the Christian name of accused was erroneously given by some of the witnesses for the prosecution.

Appeal from Circuit Court, Maries County; Wm. H. Martin, Judge.

Albert Martin and another were convicted of crime, and they appeal. Affirmed.

W. S. Pope, for appellants. E. W. Major, Atty. Gen., and John M. Dawson, Asst. Atty. Gen., for the State.

GANTT, P. J.

This is an appeal from a conviction and sentence of the circuit court of Maries county. On the 5th of October, 1908, the prosecuting attorney of the said county filed an amended information charging the defendant, together with William Sneed, James Denton, and Lafayette Sneed, with the crime of obtaining money by means of false and fraudulent representations. The cause was dismissed as to James Denton and Lafayette Sneed, and the defendants Albert Martin and William Sneed were found guilty, and their punishment assessed at three years in the penitentiary. Inasmuch as one of the principal questions arising in the case is whether the information charges a felony or misdemeanor, it is deemed best to reproduce the information in full. Omitting the caption, it is in these words:

"Joseph W. Mosby, prosecuting attorney within and for the county of Maries in the state of Missouri, upon his oath of office informs the court that heretofore, to wit, on or about the 9th day of November, 1907, and long prior thereto, at the county of Maries and state of Missouri, one D. B. Wilcox, was the owner of a certain tract of land situate, lying and being in said county of Maries in the state of Missouri, described as follows, to wit: The west half of section twenty-eight, and the west half of the southeast quarter of section twenty-eight, the northwest quarter of section thirty-three, and the south half of section thirty-three, all in township thirty-nine of range ten. And that the said D. B. Wilcox, as the owner of said tract of land, was then and there entitled to have and receive from one W. D. Bull, a certain sum of money, to wit, the sum of fifteen dollars on account of and for timber which the said W. D. Bull had theretofore cut and removed from said tract of land, and that on the said 9th day of November, 1907, at the said county of Maries and state aforesaid, James S. Denton, Albert Martin, William Sneed and Lafayette Sneed, with the intent then and there unlawfully and feloniously to cheat and defraud the said W. D. Bull, then and there unlawfully, knowingly and feloniously did falsely and fraudulently represent, state and pretend to the said W. D. Bull that the said James S. Denton was then and there, the said D. B. Wilcox, the owner of the said described tract of land, and that he, the said James S. Denton so falsely and fraudulently represented as the said D. B. Wilcox, as aforesaid, was then and there entitled to have and receive from the said W. D. Bull, the said sum of fifteen dollars on account of and for timber which the said W. D. Bull had cut and removed from the said tract of land aforesaid, and that the said W. D. Bull believed said false and fraudulent representation, statements and pretenses so made as aforesaid, by the said James S. Denton, Albert Martin, William Sneed and Lafayette Sneed to be true, and being deceived thereby, was induced by reason thereof to then and there pay, and did pay to said James S. Denton the said sum of money, to wit, the sum of fifteen dollars, and that the said James S. Denton, Albert Martin, William Sneed and Lafayette Sneed by means and by use of the said false and fraudulent representations, statements and pretenses so made as aforesaid, then and there unlawfully, knowingly and feloniously did obtain from him, the said W. D. Bull, the said sum of fifteen dollars, in money of the value of fifteen dollars, the property and money of him, the said W. D. Bull then and there being, with the intent then and there unlawfully and feloniously to cheat and defraud him, the said W. D. Bull of the same, whereas, in truth and fact, the said James S. Denton, was not the said D. B. Wilcox, and was not the owner of the said described land, and the said James S. Denton, Albert Martin, William Sneed and Lafayette Sneed, or either of them, did not then and there have any right or authority whatever to collect, have or receive from the said W. D. Bull the said sum of fifteen dollars in money or any part thereof, for or on account of timber cut and removed from said tract of land by said W. D. Bull, or on any account whatever. And the said James S. Denton, Albert Martin, William Sneed and Lafayette Sneed, then and there well knew the said false and fraudulent representations, statements and pretenses, made as aforesaid, to be false; against the peace and dignity of the state. Joseph W. Mosby, Prosecuting Attorney of Maries county, Mo."

This information was duly verified on the 5th of October, 1908. It appears from the testimony that on and prior to the 9th of November, 1907, one Wilcox, a nonresident of the state of Missouri, was the owner, or at least the reputed owner, of about 900 acres of land in sections 28 and 33 in township 39, range 10, in Maries county, Mo.; that said Wilcox was unknown in the neighborhood of said land; that W. D. Bull, John Bull, Richard Blackwell, Thomas Hanks, and the defendants, Albert Martin and William Sneed, and Lafayette Sneed all lived in the neighborhood of this land in Dry Creek township in said county; that said land was timber land; that W. D. Bull had gone upon said land either by mistake or as a trespasser, and cut enough timber to make at least 15 railroad ties, without any authority from the owner of said land or from any one having authority over the same. It also appeared that other neighbors of Bull had in like manner cut timber on those lands, and that the defendants, Martin and Sneed, conceived of a fraudulent scheme whereby Denton, who lived in the city of Rolla in Phelps county, and who was at the time a stranger in Dry Creek township, should represent himself as D. B. Wilcox; that the defendants, Martin and William Sneed, and Lafayette Sneed designed to have Denton go to Maries county and into said Dry Creek township in the neighborhood of this land and represent himself to W. D. Bull as well as to other parties in the neighborhood to be the true owner of the said lands and to represent himself to be said Wilcox with the intent to cheat, wrong, and defraud said W. D. Bull by settlements and compromises for the timber so cut by the said Bull, and obtain from said Bull the price of the said timber, and to obtain moneys for the same purpose from the other parties who had cut timber on said land. It transpired from the testimony that Denton was successful in representing Wilcox, and in obtaining from the said W. D. Bull $10 in money and $5 in services, and in obtaining from other neighbors in that vicinity, for timber they cut on said lands, and for the purpose of avoiding criminal prosecutions against them, money to the amount of $115. It seems Denton divided equally between the defendants, Martin and William Sneed, and himself. Denton was not the owner of the land or of any part of it and never had owned it, and was a stranger in the neighborhood and a stranger to the land.

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