State v. Neal

• Decision Date: 25 March 1943
• Docket Number: 38246
• Citation: 169 S.W.2d 686,350 Mo. 1002
• Parties: State v. Joseph Neal and J. F. Hines, Appellants
• Court: Missouri Supreme Court

169 S.W.2d 686

350 Mo. 1002

State v. Joseph Neal and J. F. Hines, Appellants

No. 38246

Supreme Court of Missouri

March 25, 1943

Appeal from Jasper Circuit Court; Hon. Ray E. Watson Judge.

Affirmed.

Roy Coyne and Gene Frost for appellant.

(1) The State failed to prove that the representations were false. State v. McLane, 278 S.W. l. c. 683. (2) There was no testimony that the prosecuting witness relied upon any statement, representation, or pretense, based upon past or existing facts. State v. Evers, 49 Mo. l. c. 542; State v. Houchins, 46 S.W.2d l. c. 891; State v Holbrook, 289 S.W. l. c. 560; 25 C. J. 593; State v Petty, 119 Mo. 425, 24 S.W. 1010; State v. Cameron, 117 Mo. l. c. 648, 23 S.W. 767; State v. Young, 266 Mo. l. c. 733, 183 S.W. 305; State v. Eudaly, 188 S.W. 110. (3) The court erred in failing to give instruction on circumstantial evidence as the State relied solely on circumstances, if there were any, to prove the falsity of the representations or pretenses. State v. Stewart, 44 S.W.2d l. c. 100; State v. Brokaw, 281 S.W. l. c. 105. (4) The court erred in passing upon the motion to quash the information, the court passing on said motion on April 18, when the defendant was absent from the courtroom. In State v. Clifton, 46 Pac. l. c. 715; State v. Buckner, 25 Mo. 167; State v. Schoenwald, 31 Mo. 147; State v. Braunschweig, 36 Mo. 397; State v. Ott, 49 Mo. 327; State v. Jones, 61 Mo. 232; State v. Smith, 90 Mo. 37, 1 S.W. 753, 59 Am. Rep. 4; State v. Meagher, 49 Mo.App. 571; See section 134, ante; Stewart v. State, 7 Cold. (Tenn.) 338; Maurer v. People, 43 N.Y. 1; State v. Moran, 46 Kan. 318, 26 P. 754; State v. Smith, 44 Kan. 75, 24 P. 84, 81 L. R. A. 774, 21 Am. St. Rep. 266; State v. Myrick, 38 Kan. 238, 16 P. 330. (5) The court erred in allowing Mrs. T. C. Taylor to testify of other accounts and circumstances between the witness, and defendant, and J. F. Hines in Pittsburg, Kansas. (6) The court erred in allowing witness Frank Baldwin to testify that he was with J. F. Hines and the defendant Neal in the city of Joplin, and to testify to transactions and to circumstances which did not constitute a similar offense or show that anyone had been defrauded. He testified that the defendant Neal attempted to search him, which was highly prejudicial, he testifying also that he was not even asked for any money, there being no offense committed and no one was defrauded. 16 C. J., p. 598; Commonwealth v. Quinn, 222 Mass., l. c. 504, 111 N. E. l. c. 405; State v. Foxton, 166 Iowa, l. c. 181, 157 N.W. l. c. 347; People v. Robertson, 89 N.W. l. c. 340; State v. Carter, 83 N.W. l. c. 715; State v. Lewis, 96 Iowa 298, 65 N.W. 295. (7) The court erred in refusing to quash the information because the defendant Neal did not have a preliminary examination, based upon the charge embodied in the information. The complaint upon which the preliminary examination was held charged a separate and distinct offense to the one alleged in the information. The pretenses alleged in the information were a total departure from the complaint upon which the preliminary examination was held. And the right of preliminary examination was denied the defendant. (8) The court erred in failing to define the offense of obtaining money under false pretense and instructing the jury that pretenses or representations of acts consummated in the future are not an offense even though relied upon, and that false pretenses must be based upon past or existing facts or conditions. State v. DeLay, 5 S.W. l. c. 607. (9) The court erred in giving Instruction 1 as it did not declare the law and there was no supporting instruction defining the offense, the information under which the defendant charged the scienter. The court failed to instruct the jury that they must find beyond a reasonable doubt that the defendant knew the representations and pretenses were false. 25 C. J., p. 665; State v. Bradley, 68 Mo. l. c. 140; State v. Houchins, 46 S.W.2d l. c. 891. To be sufficient for conviction of obtaining money under false pretenses, the false representations relied and acted upon must be of existing facts. State v. Holbrook, 289 S.W. 560; State v. Eudaly, 188 S.W. 110; State v. Jamison, 268 Mo. 185, 186 S.W. 972; State v. Young, 266 Mo. l. c. 733, 183 S.W. 305; State v. Krouse, 171 Mo.App. 424, 156 S.W. 727; State v. Petty, 119 Mo. 425, 24 S.W. 1010; State v. Cameron, 117 Mo. l. c. 648, 23 S.W. 767; State v. DeLay, 93 Mo. 98, 5 S.W. 607. (10) The court erred in refusing the request of Mr. Coyne, Counsel for the defendant. The assistant prosecuting attorney said in his closing argument "That the old man had been fleeced of his one-thousand dollars, by these nefarious crooks" (referring to the defendant). State v. Young, 12 S.W. 879; State v. Fischer, 27 S.W. 1109; State v. Bobbst, 32 S.W. 1149; State v. Schneiders, 168 S.W. 604; State v. Clancy, 125 S.W. l. c. 458; State v. Midkiff, 278 S.W. l. c. 681. (11) The court erred in refusing the defendant to further cross-examine witness Mower, after the State had closed its case. State v. Hersh, 296 S.W. l. c. 433. (12) The court erred in giving Instruction 5, by qualifying said instruction, and said instruction did not declare the law and instruct the jury that, even though they believed defendant had acted dishonestly in other transactions testified to, they could not convict defendant on such testimony. State v. Bayne, 88 Mo. l. c. 604.

Roy McKittrick, Attorney General, Russell C. Stone and Gaylord Wilkins, Assistant Attorneys General, for respondent.

(1) The information is sufficient. Sec. 4487, R. S. 1939; State v. Nienaber, 148 S.W.2d 1024, 347 Mo. 615; State v. Montgomery, 116 S.W.2d 72. (2) The verdict is sufficient and responsive to the information. State v. Kleine, 263 S.W. 114; State v. Rosenheim, 261 S.W. 95, 303 Mo. 533. (3) There was evidence in the record that the representations of the defendant Neal were false and that the prosecuting witness relied upon them. (4) The court did not err in instructing upon circumstantial evidence. State v. Hadlock, 316 Mo. 695, 289 S.W. 945; State v. Singleton, 77 S.W.2d 80; State v. Mansker, 98 S.W.2d 666, 339 Mo. 913. (5) The court did not err in hearing and passing upon defendant's motion to quash during his absence from the courtroom. State v. Long, 209 Mo. 367, 108 S.W. 35; State v. Bobbst, 269 Mo. 214, 190 S.W. 257; State v. Carroll, 62 S.W.2d 863, 333 Mo. 558. (6) The court did not err in permitting Mrs. T. C. Taylor and Frank Baldwin to testify. State v. Craft, 344 Mo. 269, 126 S.W.2d 177; State v. Samis, 296 Mo. 471, 246 S.W. 956. (7) The court did not err in refusing to quash the information and granting a preliminary hearing to defendant, as the defendant was granted a preliminary and the complaint charged the defendant with the crime of obtaining money under false pretenses, as did the information. State v. Flannery, 263 Mo. 579, 173 S.W. 1053; State v. Barr, 12 S.W.2d 57; State v. Long, 240 S.W. 167, 293 Mo. 436. (8) The court did not err in refusing to define the offense of obtaining money under false pretenses, and did not err in refusing to instruct the jury that the representations of false pretenses must be based upon past or existing facts. State v. Griffith, 311 Mo. 630, 279 S.W. 135; State v. Hart, 292 Mo. 74, 237 S.W. 473; State v. Garrett, 285 Mo. 279, 226 S.W. 4; State v. McCullough, 289 S.W. 811, 316 Mo. 42. (9) The court did not err in refusing to discharge the jury for remarks of the prosecuting attorney, and did reprimand the prosecutor for the statements made. State v. Merricks, 18 S.W.2d 23; State v. Blackmore, 38 S.W.2d 32, 327 Mo. 708. (10) The court did not err in refusing the defendant the right to further cross-examine the witness Mower after the State had closed its case. State v. Fredericks and Langon, 37 S.W. 832, 136 Mo. 51; State v. Loahmann, 58 S.W. 309; State v. Ryland, 25 S.W. 109, 324 Mo. 714; State v. Hoffman, 132 S.W.2d 27. (11) Assignments of error not in the motion for new trial should not be considered. Sec. 4125, R. S. 1939; State v. Arenz, 100 S.W.2d 264, 340 Mo. 160; State v. Batey, 62 S.W.2d 450; State v. Gentry, 8 S.W.2d 20, 320 Mo. 389; State v. Barbata, 80 S.W.2d 865, 336 Mo. 362. (12) All assignments of error contained in the motion for new trial and was carried forward in the brief of the appellant are waived. Sec. 4125, R. S. 1939; State v. Mason, 98 S.W.2d 574, 339 Mo. 874; State v. Huett, 340 Mo. 934, 104 S.W.2d 252; State v. Davit, 125 S.W.2d 47, 343 Mo. 1151; State v. Kenyon, 126 S.W.2d 245, 343 Mo. 1168.

OPINION

Ellison, J.

The appellant was convicted in the circuit court of Jasper County of obtaining $ 1000 in money under false pretenses from one E. J. Mower, in violation of Sec. 4487, R. S. 1939, Mo. R. S. A., sec. 4487. The prosecution was not based on Sec. 4694, R. S. 1939, Mo. R. S. A., sec. 4694, for obtaining money by cheats, frauds, bogus checks or other device commonly called "the confidence game." This was expressly admitted by the prosecuting attorney during the trial. The punishment assessed by the jury was imprisonment in the penitentiary for five years. The statute provides the punishment shall be the same as for stealing the money so obtained; and since the stealing of money of the value of $ 30 or more would be grand larceny, a felony, under Sec. 4456, R. S. 1939, Mo. R. S. A., sec. 4456, for which the maximum punishment is five years' imprisonment in the penitentiary under Sec. 4457, R. S. 1939, Mo. R. S. A., sec. 4457, the verdict is within the statute and we have appellate jurisdiction.

The assignments of error in appellant's brief are: (1) there was no substantial evidence to support the verdict because there was no showing that the representations made were false in a legal sense or that the...