State v. Nienaber

• Decision Date: 12 March 1941
• Docket Number: 37309
• Parties: The State v. Clark Nienaber, Appellant
• Court: Missouri Supreme Court

148 S.W.2d 537

347 Mo. 541

The State v. Clark Nienaber, Appellant

No. 37309

Supreme Court of Missouri

March 12, 1941

Appeal from Audrain Circuit Court; Hon. E. L. Alford Special Judge.

Affirmed.

Don C. Carter for appellant.

(1) "The information does not state facts sufficient to constitute any offense under the laws of this State." This prosecution is under Section 4100, Revised Statutes 1929, and under the "third" offense contained in the statute. Since we have fully set out the history of this statute in point (1) and (3), hereafter, in this brief, we will refer the court to those points, and not discuss them here. The information filed in this case, being bottomed under the "third" offense denounced by Section 4100, as defined by this court in the case of State v. Miller, infra, should have charged the defendant with having "removed and concealed" such mortgaged property. (2) "Because the court erred in refusing to give defendant's peremptory instruction or demurrer to the evidence, at the close of all the evidence on the part of the State." (3) "Because the court erred in refusing to give defendant's peremptory instruction or demurrer to the evidence, at the close of all the evidence in the case both on the part of the State and the defendant."

Roy McKittrick, Attorney General, and W. J. Burke Assistant Attorney General, for respondent.

(1) The information in this cause is sufficient in form and substance and states sufficient facts to constitute an offense under the laws of this State. Sec. 4100, R. S. 1929; State v Miller, 164 S.W. 482, 255 Mo. 229; State v. Klick, 282 S.W. 161; State v. Ferris, 16 S.W.2d 96, 322 Mo. 1; State v. Spidle, 116 S.W.2d 96, 342 Mo. 571. (2) The court did not err in refusing to give defendant's peremptory instruction in the nature of a demurrer to the evidence at the close of the State's case. State v. Barr, 78 S.W.2d 104, 336 Mo. 300; State v. Lebo, 98 S.W.2d 697; State v. Meadows, 51 S.W.2d 1033, 330 Mo. 1020; State v. Starling, 207 S.W. 767. (3). The court did not err in refusing to give defendant's peremptory instruction which was in the nature of a demurrer to the evidence at the close of all of the evidence in the case, both on the part of the State and of the defendant. State v. Carson, 18 S.W.2d 461; State v. Ferris, 16 S.W.2d 96. (4) The court did not err in permitting the State's witness Earl Carter to testify that defendant had sold the three remaining steers of the fifty-five head at a community sale. State v. Spinks, 125 S.W.2d 60; State v. Craft, 126 S.W.2d 177; State v. Garrison, 116 S.W.2d 23, 342 Mo. 453. (5) The court did not err in giving Instruction 5, on the part of the State. State v. Maupin, 196 Mo. 174, 93 S.W. 378; State v. Lassin, 238 S.W. 101. (6) The court did not err in not defining "feloniously." State v. Raines, 62 S.W.2d 729; State v. Cottengim, 12 S.W.2d 53; State v. Carter, 64 S.W.2d 687. (7) The court did not err in giving State's Instruction 1 as State's Instruction 1 follows the information.

Westhues, C. Cooley and Bohling, CC., concur.

OPINION

WESTHUES

By an information filed in the Boone County Circuit Court appellant was charged with a violation of Section 4100, R. S. Mo. 1929, Mo. Stat. Ann., page 2900, in that he removed from the County of Boone, in the State of Missouri, mortgaged property, to-wit, fifteen head of two-year-old steers valued at $ 729, with the intent to hinder, delay and defraud the mortgagee. A change of venue brought the case to Audrain County where the regular judge was disqualified on application of the defendant and Judge Edmund L. Alford called to try the case. Appellant was convicted and sentenced to six months' imprisonment in jail. After being denied a new trial he appealed.

Appellant challenged the sufficiency of the information in that it charged him with removing mortgaged property, whereas appellant says it should have been charged that he "removed and concealed" the property. Note that the statute reads: ". . . or shall remove or conceal, or aid or abet in removing or concealing such property." Appellant cites the case of State v. Miller, 255 Mo. 223, 164 S.W. 482, l. c. 484, and argues that this court in that case held the statute created three separate and distinct offenses. Appellant in his brief quoted the following from that case:

"These three offenses consist: (a) Of selling, conveying, or disposing of mortgaged chattels; (b) of injuring or destroying or aiding and abetting in injuring or destroying such chattels; and (c) of removing or concealing or aiding in the removing or concealing of the same, . . ." The court, however, further commented:

"These three offenses are each defined by groups of words, which, as to all other words in each group, are subject to the rule of ejusdem generis. But this rule does not apply interchangeably, as among the groups themselves. If it did, then clearly the whole section would denounce but one offense. So, since the words 'dispose of,' do not in diction ordinarily, if ever, mean 'to remove or conceal,' or 'to injure or destroy,' they do not have any such meaning as they are used in this section, but they refer only to a disposing of a chattel effected by a sale or conveyance."

In that case the defendant was charged in one count of the information with removing and concealing mortgaged property and also with selling and conveying the property. This court held the information defective because it charged two distinct and separate offenses. We have no fault to find with that ruling. It does not follow, however, that an information must charge in the conjunctive all the acts mentioned in any one of the three groups. In other words, to charge in an information that the defendant injured mortgaged property would be sufficient, or that he disposed of the property. So if a defendant were charged with concealing mortgaged property the information would be sufficient. An information may charge, without being duplicitous that a defendant removed and concealed mortgaged property, but that is not mandatory. We are of the opinion that an offense is complete when mortgaged property is removed from the county and state without the consent of the mortgagee and with intent to defraud such mortgagee. A reading of the statute and the case above referred to leaves no room for any other conclusion. We hold the information sufficient.

Appellant also urged that the evidence was insufficient because it did not show that appellant had concealed the property. What we have said disposes of that point. Again, appellant contends that the evidence showed the property had been sold and therefore there was a fatal variance between the charge and the proof. To dispose of this point it will be necessary to briefly relate the facts. Appellant lived on a farm in Boone County and was a feeder of live stock, principally cattle. On March 4, 1938, he purchased fifty-five head of two-year-old Hereford steers. He executed a note in the sum of $ 3550, payable to the St. Louis Live Stock Loan Company, and as security gave a chattel mortgage on the fifty-five steers and other cattle. He had transacted business with this company for about twelve years. In the fall of 1938, most of the steers were sold, with the consent of the mortgagee, and the proceeds applied to the payment of the note. Eighteen or nineteen steers remained on the farm of appellant, and the balance due on the note and mortgage was $ 468. Evidence disclosed that on November 15, appellant employed one Sam Holman to truck fifteen head of Hereford steers to East St. Louis. They were shipped under the name of Richard Dysart. They were sold at the National Stock Yards, and a check was issued, payable to Richard Dysart, for $ 686. Appellant asked for the check explaining that the steers were partnership property and he desired the partner, Dysart, to endorse it. In a few minutes appellant returned with Dysart's name on the check. He then endorsed it and received the cash. Appellant was arrested about December 1, in Fort Smith, Arkansas. While in jail a representative of the loan company asked him what he had done with the proceeds received for the cattle. Appellant replied: "I was robbed." At the trial Dysart denied any connection with the transaction. It is evident that the evidence was ample to sustain a finding that the steers were removed for the purpose of defrauding the mortgagee.

Appellant urges that the trial court erred in admitting evidence of the sale of the fifteen steers and also the sale of three steers at the community sale at Columbia, Missouri, a few days before the fifteen steers were taken to St. Louis. If appellant had delivered the proceeds of the sales to the mortgagee, then of course there would not have been any evidence of an intent to defraud. And, had appellant intended to deliver the proceeds to the mortgagee, but before he was able to do so been robbed, then there would not have been any intent to defraud. The intention on the part of the defendant in having the cattle transported to the National Stock Yards was very material. In order to make a case the State was required to prove that appellant removed the property with intent to defraud. Evidence that the cattle were shipped under a name other than that of the true owner; that a check was made in another's name and that the owner collected the money and left for parts unknown, was legitimate evidence tending to show an intent to defraud. The evidence that the remaining three steers were sold at Columbia and the proceeds unaccounted for was also admissible on the same theory. The fact that such evidence tended to establish the commission of another offense did not render the evidence inadmissible. The rule is stated in 16 C. J. 589, sec. 1137, as follows:

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