State v. Miller

• Decision Date: 17 February 1914
• Citation: 255 Mo. 223,164 S.W. 482
• Parties: STATE v. MILLER.
• Court: Missouri Supreme Court

164 S.W. 482

255 Mo. 223

STATE v. MILLER.

Supreme Court of Missouri, Division No. 2.

February 17, 1914.

1. CHATTEL MORTGAGES (§ 230)—OFFENSES—STATUTE.

Rev. St. 1909, § 4570, declaring that every mortgagor or grantor in any chattel mortgage or deed of trust who shall dispose of any of the mortgaged property without the consent of the mortgagee or beneficiary, or who shall destroy or injure such property, or shall remove or conceal it, shall, if the property be of the value of $50 or more, be guilty of a felony, denounces three offenses, first, disposition of mortgaged chattels, second, their destruction, and, third, removal and concealment; and, as the words "dispose of" cannot, under the rule of ejusdem generis, be held equivalent to removal or concealment, one accused of removing and concealing mortgaged chattels cannot be convicted of a sale or disposition of mortgaged chattels.

2. INDICTMENT AND INFORMATION (§ 202) — DEFECTS—DUPLICITY—CURE.

Ordinarily the defect of duplicity in an information is cured by verdict.

3. CRIMINAL LAW (§ 1088) — APPEAL — RECORD PROPER—CONTENTS—VERDICT.

In a criminal prosecution, the verdict is a part of the record proper, as distinguished from matters of pure exception which are made parts of the record by a bill of exceptions.

4. CHATTEL MORTGAGES (§ 232) — TRIAL — VERDICT.

A verdict must be responsive to the charge in the information, to the evidence offered, and to the issues presented by the instructions; and hence a verdict, finding accused guilty of disposing of mortgaged chattels, as charged in the information, cannot stand where the evidence showed that accused, if guilty, was only guilty of removing and concealing mortgaged chattels and that was the only question submitted to the jury by the instructions.

5. CRIMINAL LAW (§ 814)—TRIAL—INSTRUCTIONS.

In a prosecution for removing and concealing mortgaged chattels, where the evidence warranted an inference of flight as well as an unlawful removal and concealment, an instruction on the presumption of guilt arising from flight is proper.

Appeal from St. Louis Circuit Court; Leo S. Rassieur, Judge.

Frank Miller, alias Frank Pulger, was convicted of removing and concealing mortgaged chattels, and he appeals. Reversed and remanded.

Defendant, convicted in the circuit court of the city of St. Louis for a violation of section 4570 of the Revised Statutes of 1909, for that, as it was charged, he had removed and concealed certain mortgaged chattels, and his punishment having been by a jury assessed at imprisonment in the penitentiary for a term of two years, has, after the usual motions for a new trial and in arrest, appealed.

Since, in our view, the disposition of the case here will turn upon questions of law applied to the record in the case rather than to the substantive facts shown in evidence and going to make up the evidentiary elements of the crime charged, we may content ourselves with saying that defendant, about the month of April, 1912, while residing at 1105 Calhoun street in the city of St. Louis, with a woman whom he represented to be his wife and a son of the latter, went to the place of business of the prosecuting witness, one Harry Rossen, at the time engaged in selling furniture in said city, and under the name of Frank Miller purchased from Rossen the personal property and chattels which form the subject-matter of this action, agreeing to pay Rossen therefor the sum of $238 by installments, payable weekly. The goods were delivered at the Calhoun street address on April 15, 1912, and a promissory note executed for the purchase price, the said sum of $238. This note was to be paid in installments of $7.50 weekly, and was secured by a chattel mortgage on the furniture purchased. Both note and mortgage were signed by defendant in the name of Frank Miller, and by the woman who was living with him, in the name of Teresa Miller.

Shortly after the delivery of the goods to the defendant he disappeared, and was, some two months thereafter, found living upon a farm near Iola, Wis., in an old house, which had formerly been a barn, and with defendant in said house was found the mortgaged furniture purchased from Rossen. It was in evidence from divers witnesses that defendant, very shortly after the making by him of the chattel mortgage to Rossen, procured the hauling of the furniture to the Union Station, there loaded it into a car, and shipped it away, inferentially of course, to Iola, Wis., where it was next found in the possession of defendant, who was there living with a woman and her son, as he had theretofore lived on Calhoun street in the city of St. Louis.

Defendant denied that he had ever purchased any furniture from the prosecuting witness Rossen, or that he knew Rossen, or that he had procured the hauling by the drayman who identified him as the one who employed the drayman to haul the furniture and place it in the car. He denied that he had ever been known by the name of Frank Miller, or that he had represented himself to Rossen or to any one else as being Frank Miller, but averred that his name was Frank Pulger, and that he had always been known by that name. He admitted, however, that he had had some connection with placing the furniture in the car, but that he had acted for one Fred Bond in that behalf. He swore that said Bond had had the furniture brought into the Calhoun street house; that he and Bond were both going to Wisconsin to work on a beet farm, and, while admitting that he was in possession of the furniture in Wisconsin, he averred that he was merely awaiting the coming there of said Bond, for whom he was holding the furniture, and for whom he was in possession thereof.

The information upon which defendant was tried, omitting caption and signature and all formal parts, and setting out but the charging part thereof, which alone is pertinent here, is as follows: "That on the 16th day of April, 1912, in the said city of St. Louis, and while said chattel mortgage was still in force and effect, the said Frank Miller, alias Frank Pulzer, alias Frank Pulger, mortgagor and grantor in said above-described chattel mortgage, did feloniously, willfully and unlawfully remove and conceal, and aid and assist in removing and concealing, the above-described personal property and chattels, so described and mentioned in said chattel mortgage, with the intent to hinder, delay, and defraud the said Harry Rossen, mortgagee as aforesaid, and did feloniously, willfully, and unlawfully sell, convey, and dispose of the above-described chattels and personal property, so described and mentioned in said chattel mortgage, without the written consent of the said Harry Rossen, mortgagee and beneficiary in said chattel mortgage, and without informing the person to whom the said chattels and personal property then and there were sold and...