State v. Mastin

• Decision Date: 04 March 1919
• Docket Number: No. 21295.,21295.
• Parties: STATE v. MASTIN.
• Court: Missouri Supreme Court

211 S.W. 15

277 Mo. 495

STATE v. MASTIN.

No. 21295.

Supreme Court of Missouri, Division No. 2.

March 4, 1919.

Rehearing Denied March 28, 1919.

Appeal from Circuit Court, Montgomery County; Ernest S. Gantt, Judge.

John J.

Mastin was convicted of obtaining money contrary to Rev. St. 1909, § 4765, as amended by Laws 1913, p. 222, as to obtaining money by trick, deception, or false and fraudulent representation, statement, "or pretense, and appeals. Affirmed.

The information upon which defendant was tried in the circuit court of Montgomery county was in two counts. He was acquitted upon the second count, but was convicted upon the first count, and his punishment was assessed at two years in the penitentiary. Defendant duly appealed.

Count 1 of the information, omitting formal parts, was as follows:

"S. S. Nowlin, prosecuting attorney within and for the county of Montgomery, in the state of Missouri, under his oath of office, informs the court and charges the fact to be that one John J. Mastin on or about the 11th day of June, 1918, in the county of Montgomery, in the state of Missouri, then and there with intent unlawfully and feloniously to cheat and defraud one Forest Nebel then and there unlawfully, knowingly, and feloniously by use of a trick and deception and false and fraudulent representation, statement, and pretense, did falsely and fraudulently represent and pretend to the said Forest Nebel that he, the said John J. Mastin, was then and there in the employ of at a salary of $1.00 per year, and the representative and authorized agent of the United States government for the purpose of raising funds for war work of various kinds, and with which to relieve those who were suffering on account of the present war, and that he, the said John J. Mastin, had full right and authority from the United States government then and there to collect money as an employé of the said United States government to be used in the prosecution of the present war, and for the relief of the aforesaid war sufferers; that under the aforesaid false and fraudulent representations he, the said John J. Mastin, after having then and there made most eloquent patriotic address and speech to the aforesaid Forest Nebel and others then and there assembled, in pursuance of his purpose to cheat and defraud did cause to be taken for him, as the representative and authorized agent of the United States government as aforesaid, a collection for the aforesaid war work and the relief of war sufferers, and the said Forest Nebel, believing the said false and fraudulent representations and statements and pretenses made as aforesaid by the said John J. Mastin to be true and being deceived thereby, was induced by reason thereof and did then and there contribute and give and pay to the said John J. Mastin the sum of twenty-five cents, lawful money of the United States, of the value of twenty-five cents, and the said John J. Mastin by means and use of said trick, deception, false and fraudulent representations, statements, and pretenses so made as aforesaid, then and there unlawfully, knowingly, and feloniously did obtain from him, the said Forest Nebel, the sum of twenty-five cents, the money and property of the said Forest Nebel, with intent then and there unlawfully and feloniously to cheat and defraud him, the said Forest Nebel, of the same. "

"Whereas, in truth and in fact, the said John J. Mastin did not have any right or authority then and there to represent the said United States government, and was not then and there the representative or authorized agent of said government to collect money for any sort of war work or for the relief of war sufferers; that he was not then and there in any manner employed by the said United States government, and he, the said John J. Mastin, well knew that he, the said John J. Mastin, did not have any right or authority then and there to collect or receive money for or on account of or as an employé of the said United States government, or as an employé of said government to collect and receive money for war work or for the relief of war sufferers, and he, the said John J. Mastin, was not then and there in any manner whatsoever an employé of the said United States government—against the peace and dignity of the state."

The evidence upon the part of the state tends to prove the following facts:

On June 11, 1918, appellant delivered a patriotic lecture at Price's Branch, a small town in Montgomery county, Mo. He made a very eloquent speech, touching the hearts of his hearers. He stated that he had been "over there," and detailed many atrocities committed by the German soldiers in Belgium. Near the close of his speech he stated that he was working for the government on a salary of $1 per year, and that he was taking voluntary contributions for the wounded soldiers of France and Belgium; that he did not need the money personally; that it all went to help the war sufferers, and that he always contributed liberally to local Red Cross organizations. At the close of his speech, and at appellant's request, the hat was passed around to receive voluntary contributions for the above purpose.

One Forest Nebel, the prosecuting witness in this case, was in the audience, and, having heard the speech, believed that appellant was the agent of the government, and authorized by the government to solicit donations for the benefit of the wounded soldiers of France and Belgium, and so believing, and by reason of the statement made, the appellant contributed the sum of twenty-five cents.

It was shown that appellant had made similar speeches at nearby towns shortly before and shortly after the one in question, and at each of these places people, believing and relying on his statement that he was in the employ of the government, contributed small sums.

On June 16, 1918, the prosecuting attorney of Montgomery county, together with two or three other citizens of the county, called upon appellant at the hotel in Bellflower, Mo. In answer to questions there made by the prosecuting attorney and others, the appellant stated that he was not employed by the government to make the speeches or take the collections; that the money which he collected was his; that he did not need to account to any one for it, but that he could do with it as he pleased.

In a day or two after this interview defendant was arrested and remained in jail until his trial.

The evidence upon the part of the defense was substantially as follows:

Some of appellant's witnesses stated that they heard the appellant make the address in question, but did not hear him say that he was working for the government. Some of appellant's witnesses, however, did testify that in the speech appellant stated that he was working for the government at $1 per year. The appellant, testifying in his own behalf, stated that he did not represent himself to be an agent or representative of the government, but that in his speech he made the following statement:

"In order that you may understand that there is a call for every man to do his bit, and that in this work there is no spirit whatever of self-centered interest, I want to say that there are twenty thousand men, twenty thousand speakers, who are doing the same identical work that I am doing for $1 per year; they come from the Publicity Department at Washington, and they are laying their very lives upon the alter of their country; they are sacrificing that others may live."

Appellant further testified that at the close of his speech he made the following remark:

"For four months and a half I have been doing all that I could along these lines. I have been giving liberally to the Red Cross; I have been giving liberally to thrift stamps; I have been using all the ability in my power for my government that I might have a part in this great work—the emancipation of humanity. I am not on a mission of charity. It is not my purpose to come here and beg you....