State v. Nienaber

• Decision Date: 12 March 1941
• Docket Number: No. 37303.,37303.
• Citation: 148 S.W.2d 1024
• Parties: THE STATE v. CLARK NIENABER, Appellant.
• Court: Missouri Supreme Court

148 S.W.2d 1024

THE STATE v. CLARK NIENABER, Appellant.

No. 37303.

Supreme Court of Missouri.

Division Two, March 12, 1941.

Appeal from Monroe Circuit Court. — Hon. E.L. Alford, Judge.

AFFIRMED.

Don C. Carter for appellant.

(1) The information filed in this cause does not state facts sufficient to constitute any offense under the laws of this State. State v. William Young, 266 Mo. 723; State v. Montgomery, 116 S.W. (2d) 72; State v. Shout, 263 Mo. 360; State v. Chick, 282 Mo. 51. (2) 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) The court erred in refusing to give defendant's peremptory instruction or demurrer to the evidence, at the close of all the evidence 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 facts sufficient under the law to substantiate the charge of obtaining money under false pretenses. Sec. 4095, R.S. 1929; State v. Loesche, 180 S.W. 875. The verdict is sufficient in form and is responsive to the charge as the information only charged one count. State v. Batey, 62 S.W. (2d) 450; State v. Gentry, 55 S.W. (2d) 941. (2) The court did not err in refusing to give defendant's peremptory instruction or demurrer at the close of the State's case. State v. Barr, 78 S.W. (2d) 105, 336 Mo. 300; State v. Lebo, 98 S.W. (2d) 695, 339 Mo. 960. (3) The court did not err in refusing to give defendant's peremptory instruction or demurrer to the evidence, at the close of all the evidence in the case. Sec. 4095, R.S. 1929; State v. Loesche, 180 S.W. 875. (4) The court did not err in giving Instruction 6 on the part of the State in the form given. State v. Maupin, 196 Mo. 174, 93 S.W. 378; State v. Lasson, 238 S.W. 101. (5) The court did not err in giving Instruction 1. State v. Turley, 142 Mo. 411, 44 S.W. 267. (6) The court did not err in giving Instruction 4 as the instruction is sufficient in form. State v. Williams, 71 S.W. (2d) 732, 335 Mo. 234; State v. McGee, 83 S.W. (2d) 98, 336 Mo. 1082; State v. Arenz, 100 S.W. (2d) 264, 340 Mo. 160; State v. McKeever, 101 S.W. (2d) 22, 339 Mo. 1066. (7) The court did not err in giving Instruction 3 as it is a proper stock form of instruction on intent. State v. Mulconry, 270 S.W. 378; State v. Griffen, 228 S.W. 804. (8) The court did not err in permitting the prosecuting attorney in his opening statement to say that the defendant had fled the country on November 10, 1938, and had been arrested in Fort Smith, Arkansas, and brought back by the sheriff of Boone County for trial. State v. Sparks, 195 S.W. 1031; State v. Brown, 62 S.W. (2d) 426; State v. Dudley, 245 Mo. 177, 149 S.W. 449.

BOHLING, C.

Clark Nienaber was charged with obtaining property under false pretenses (Sec. 4487, R.S. 1939, Mo. Stat. Ann., sec. 4095, p. 2894) in the Circuit Court of Boone County, Missouri. A change of venue was granted to Monroe County. Upon trial, defendant was found guilty and sentenced to two years' imprisonment. He appeals.

[1] Defendant attacks the information. He says an allegation that made false and fraudulent representations "designedly and with the false and fraudulent intent" et cetera should have read: "designedly and with the felonious intent" to charge a felonious intent. We are inclined to view the questioned portion as surplusage. We think we may dispose of the issue without setting out the information, which is lengthy and involved. Section 4487, in so far as material, reads: "Every person who, with intent to cheat or defraud another, shall designedly, by color of any false token or writing, or by any other false pretense ... obtain from any person any money, personal property, right in action or other valuable thing or effects whatsoever ... shall upon conviction thereof be punished ... as for feloniously stealing..." This statute prohibits specified acts done with an intent "to cheat or defraud," and does not denominate the intent necessary for the commission of the offense as a "felonious" intent, although the prohibited offense — the act plus the intent — constitutes a felony. The information charged an intent to cheat and defraud, and it was not necessary to also characterize the intent as "felonious" [Consult State v. Blockberger, 247 Mo. 600, 605(1), 153 S.W. 1031, 1033; State v. Watson, 141 Mo. 338, 42 S.W. 726; State v. McGraw, 87 Mo. 161, 164; 31 C.J., p. 699, nn. 3, 4.] Generally speaking, the word "felonious" or "feloniously" has been considered essential to all charges of felony (State v. Murdock, 9 Mo. 739; State v. Pryor, 342 Mo. 951, 952[1], 119 S.W. (2d) 253[1], among others; but see State v. Burton, 324 Mo. 214, 22 S.W. (2d) 1049), "because its use `informs the accused of the nature or grade of crime he is alleged to have committed'" (State v. Pryor, supra). Measured by this reasoning defendant's contention may not be sustained as to do so would sacrifice substance to form if the information otherwise sufficiently charged a felony, a fact unquestioned by defendant. It, in other portions, charged that defendant "feloniously and designedly with the intent to cheat and defraud the Columbia Savings Bank ... did apply" to said bank for a loan, "and then and there designedly and with the felonious intent to obtain said loan ... did ... represent" that he was the owner and had possession of certain personal property, et cetera. [See also State v. Davis, 29 Mo. 391, 396; State v. Baird, 271 Mo. 9, 13(I), 195 S.W. 1010, 1012[1].] A number of cases demonstrate a tendency on the part of this court in ruling the sufficiency of charges for offenses individuated by statute to relax the great strictness and technical accuracy required of criminal charges at common law which considered form so essential that it could not be distinguished from substance. [State v. Adkins, 284 Mo. 680, 689, 225 S.W. 981, 983; State v. Lee, 303 Mo. 246, 254 (III, IV), 259 S.W. 798, 800 (III, IV); Ex parte Keet (Banc), 315 Mo. 695, 700, 287 S.W. 463, 465; State v. Glass, 318 Mo. 611, 615 (II), 300 S.W. 691, 692[3].]

[2] Defendant, on the theory there was no sufficient proof that he, on April 22, 1938, did not own and possess the livestock he represented he owned and possessed, contends there was no case made.

Defendant resided in Boone County, Missouri, and was a feeder of livestock. He banked with the Columbia Savings Bank, Columbia, Missouri, for a number of years. On April 22, 1938, he asked Mr. Banks, an assistant cashier, for a loan of $500 and stated he desired to renew and consolidate his outstanding indebtedness to the bank, consisting of four notes aggregating $2,440. On the faith of defendant's representations of his ownership and possession on his farm of 259 hogs, 6 mules and I saddle colt, the bank agreed to an indebtedness aggregating $2,750. Defendant thereupon executed and delivered to the bank two notes, dated April 22, 1938, one, payable in six months, for $1,500 and the other, payable in ninety days, for $1,250, securing the same by a chattel mortgage on the livestock aforesaid, and the bank delivered to defendant the notes evidencing and the mortgages securing his prior indebtedness, and gave him credit for $310 on his checking account. The bank, shortly before July 22, 1938, notified defendant of the maturity of the $1,250 note. Defendant came in, stated he would like to hold the hogs thirty days for a better market and the extension was granted. Again, in response to the bank's notification, defendant asked an additional extension for like purposes and the bank agreed to an additional two weeks, with the understanding the hogs were to be then shipped and remittance made. Upon the expiration of the two weeks' period, the bank notified defendant by mail and, receiving no response, wrote defendant several times. On November 10, 1938, Mr. Banks went to defendant's farm, where defendant advised him he had sold "what hogs he had." Mr. Banks insisting, defendant called at the bank that afternoon. The matter was not adjusted. Although the bank thereafter made efforts to locate defendant, he was next seen by Mr. Banks in the Prosecuting Attorney's office the first week of December, 1938. Mr. Banks asked defendant, if he ever owned all the hogs listed in the mortgage. He said: "No, but I did have part of them." Earl Carter testified that he was at defendant's place every third or fourth week in March, April, May and June, 1938, inspecting a loan on cattle for the St. Louis Livestock Company; that he was over defendant's pastures, etc.; that he never saw as many as 150 hogs there, and that, according to his judgment, he saw only 50 to 60 hogs on the farm. Another witness, Frank Bruner, testified that he was working for defendant and, in April, 1938, defendant owned only 3 mules, 1 horse, and (although the following was much shaken on cross-examination) 60 to 70 hogs. Frank Johnson, whose folks had purchased the farm, testified he was repairing and painting buildings on the farm between June 4, and September 14, 1938, and that defendant had only 50 to 75 hogs. A submissible case was made.

[3] An assignment in the motion for new trial alleged error in the admission of testimony with respect to matters occurring after the giving of the chattel mortgage tending to show that defendant had disposed of property subject to the mortgage without designating the witness or witnesses so testifying. Speaking to the sufficiency of assignments questioning the evidence, State v. Ryan (Mo.), 50 S.W. (2d) 999, 1000[8], states: "It is sufficient if the assignment contains the name of the witness, the substance of the testimony complained of, and the grounds of its admissibility or inadmissibility. This is the better practice." [See also State v. Buckner (Mo.), 80 S.W. (2d) 167, 169[10]; ...