State v. McConnell
| Decision Date | 27 February 1912 |
| Citation | 144 S.W. 836,240 Mo. 269 |
| Parties | STATE v. McCONNELL. |
| Court | Missouri Supreme Court |
In a prosecution for conveying realty with intent to defraud, the information alleged that accused while a trust deed was outstanding and in force, with intent to cheat and defraud, conveyed the land to C., he being another person than the holder of the trust deed, and that accused did with intent to cheat and defraud fail to recite in such second deed the first deed, or the substance thereof, "made to C. as aforesaid." Rev. St. 1909, § 5115, provides that no indictment or information shall be deemed invalid for any surplusage, or repugnant allegation, when there is sufficient matter alleged to indicate the crime and person charged. Held that, in view of the statute, the words "made to C. as aforesaid," would be disregarded as surplusage; for it had already been alleged that the second deed was made to C.
4. CRIMINAL LAW (§ 1043) — OBJECTION— SCOPE.
Such objection was not available under a general objection that the information did not state any offense.
5. INDICTMENT AND INFORMATION (§ 119)— SURPLUSAGE.
Allegations in an information disclosing that no crime has been committed cannot be rejected as surplusage.
6. INDICTMENT AND INFORMATION (§ 167— ALLEGATIONS—PROOF.
Allegations in an information, though unnecessary, must be proved as laid, if descriptive of the identity of what is legally essential.
7. CRIMINAL LAW (§ 761)—TRIAL—INSTRUCTIONS.
In a prosecution for fraudulently conveying realty without reciting in the deed the existence of a prior deed of trust, where accused admitted the execution of the trust deed and the subsequent deed, and there was no controversy that the subsequent deed failed to recite the existence of the trust deed, the existence of those facts was properly assumed in the instructions.
8. CRIMINAL LAW (§ 1159) — APPEAL — VERDICTS —CONFLICTING EVIDENCE.
The appellate court will not weigh conflicting evidence.
Appeal from Circuit Court, Christian County; Jno. T. Moore, Judge.
Frank McConnell was convicted of fraudulently conveying real estate without reciting in the deed the execution of a prior deed of trust, and he appeals. Affirmed.
Hays & Hays, for appellant. The Attorney General, for the State.
Defendant was convicted in the circuit court of Christian county of fraudulently conveying certain real estate without reciting in the deed the whole or the substance of a prior trust deed executed by him, which covered the same property. Having been duly sentenced to serve two years in the penitentiary, he appealed.
The evidence disclosed that defendant executed to Pope, as trustee for Hale and McConnell, a deed of trust on the property described in the information at a time when he had only color of title thereto; that subsequently he acquired the legal title, and thereafter conveyed the land to one Carstin by a warranty deed in which appears no reference to the trust deed mentioned. There was evidence that defendant assured Carstin the land was unincumbered save by mortgage securing the purchase money to those from whom he acquired the actual title. Carstin testified that he knew nothing of the deed of trust to Pope. The evidence for the defense was to the effect that Carstin knew all about the deed of trust, and that both he and defendant were under the impression that it was invalid by reason of having been executed at a time when defendant had no title. Defendant testified in his own behalf. He admitted the execution of both the deed of trust to Pope and the warranty deed to Carstin, and testified that the latter told him before purchasing the land that he had been advised the deed of trust was void. Some evidence was offered in rebuttal to the effect that defendant's reputation for truth and veracity was bad.
1. The information in this case, after sufficiently charging that defendant in March, 1909, conveyed certain described land to Pope as trustee for Hale and McConnell to secure $150, continues: "That afterwards, to wit, on the 1st day of October, 1909, he, the said Frank McConnell, at the county aforesaid, while the deed aforesaid was outstanding and in force, unlawfully and feloniously with intent to cheat and defraud did then and there, the same land as aforesaid, by a good and sufficient deed, properly acknowledged and executed and delivered, convey unto one Lundy Carstin for a consideration of six hundred dollars, the same land as previously granted; he, the said Lundy Carstin, being another and different person from said E. J. Pope, William Hale, or W. A. McConnell, and he, the said Frank McConnell, did then and there unlawfully, feloniously, and knowingly, with intent to cheat and defraud as aforesaid, purposely and designedly fail, refuse, and omit to recite in such second deed, the first deed and the substance thereof, made to Lundy Carstin, as aforesaid, against," etc. The failure to name in the information the particular person whom defendant intended to defraud calls for no comment save that the general allegation made is specifically authorized by section 4921, R. S. 1909.
The clause alleging that defendant "did, etc., fail, refuse, and omit to recite in such second deed the first deed and the substance thereof" charges plainly enough the omission from the second deed of both the recitation of the whole of the first deed and the recitation of its substance, the inclusion of either of which would have exonerated defendant. The employment of separate clauses in negativing the recitation of the whole and the recitation of the substance of the first in the second deed might have made it more clear that it was not to be implied that, in any event, both the whole and the substance of the first deed ought to have been recited or set out in the second; but the language used is entirely sufficient, and in this respect also the information is upheld.
A more serious question is presented by the use, in the concluding part of the last sentence of the information, of the words "made to Lundy Carstin as aforesaid." Carstin was the grantee in the second deed, and not in the first deed, and, without doubt, the words mentioned have no place in the clause in which they are used. The necessity of charging that neither the first deed nor its substance was recited in the second deed cannot be denied. Such a charge is essential to the validity of the information. Does the use of the words quoted so affect the sentence and the sense that the charge becomes merely that the deed to Carstin was not recited in itself, and thereby invalidate the information? "No indictment or information shall be deemed invalid, nor shall the trial judgment or other proceedings thereon be stayed, arrested or in any manner affected * * * for any surplusage or repugnant allegation, when there is sufficient matter alleged to indicate the crime and person charged * * * nor for any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits; Provided, that nothing herein shall be so construed as to render valid any indictment which does not fully inform the defendant of the offense of which he stands charged." Section 5115, R. S. 1909.
This court has had occasion to apply this statute. In the case of State...
To continue reading
Request your trial
-
State v. Park
...was not error because that fact was not controverted by defendant. State v. Moore, 101 Mo. 316; State v. Zinn, 61 Mo. App. 476; State v. McConnell, 144 S.W. 836; State v. Bobbst, 190 S.W. 257; State v. Carr, 256 S.W. 1043. (b) This instruction does not assume that there were other transacti......
-
The State v. Stegner
... ... maker was that of a real or fictitious person. Only essential ... allegations so pleaded as to fully apprise the accused of the ... nature of the accusation against him are required. [State ... v. Chissell, 245 Mo. 549, 150 S.W. 1066; State v ... McConnell, 240 Mo. 269, 144 S.W. 836; State v ... McGrath, 228 Mo. 413, 128 S.W. 966; State v ... Harris, 209 Mo. 423, 108 S.W. 28; State [276 ... Mo. 436] v. Yerger, 86 Mo. 33.] Rulings elsewhere ... upon similar statutes are of like effect. [Williams v ... State, 126 Ala. 50, 28 So. 632; People v ... ...
-
State v. Golden
... ... 607, 226 S.W. 18; ... State v. Patterson, 159 Mo. l.c. 101, 59 S.W. 1104; ... State v. Washington, 259 Mo. 335, 168 S.W. 695; ... State v. Meysenburg, 171 Mo. 1, 71 S.W. 229; ... State v. Leonard, 171 Mo. 622, 71 S.W. 1017; ... State v. Smith, 31 Mo. 120; State v ... McConnell, 240 Mo. 269, 144 S.W. 836; State v ... Scovill, 15 S.W. 931; State v. Stewart, 63 ... S.W.2d l.c. 213; State v. Meek, 70 Mo. l.c. 358; ... State v. Bowman, 247 S.W. 143; State v ... Craft, 23 S.W.2d 183; State ex rel. Hickey v ... McGrath, 95 Mo. 193, 6 S.W. 425; State ex inf ... ...
-
State v. Park
...was not error because that fact was not controverted by defendant. State v. Moore, 101 Mo. 316; State v. Zinn, 61 Mo.App. 476; State v. McConnell, 144 S.W. 836; State v. Bobbst, 190 S.W. 257; State Carr, 256 S.W. 1043. (b) This instruction does not assume that there were other transactions.......