State v. Norman

• Decision Date: 23 June 1921
• Docket Number: No. 22631.,22631.
• Citation: 232 S.W. 452
• Parties: STATE v. NORMAN.
• Court: Missouri Supreme Court

232 S.W. 452

STATE v. NORMAN.

No. 22631.

Supreme Court of Missouri, Division No. 2.

June 23, 1921.

Motion to Modify Opinion Overruled July 19, 1921.

Appeal from Circuit Court, Pemiscot County; Sterling H. McCarty, Judge.

Leslie Norman was convicted of false pretenses, and appeals. Reversed and remanded.

Ward & Reeves, of Caruthersville, for appellant.

Jesse W. Barrett, Atty. Gen., and Marshall Campbell, Sp. Asst. Atty. Gen., of Sedalia, for the State.

HIGBEE, P. J.

On July 18, 1919, the prosecuting attorney of Pemiscot county filed an information charging that the defendant, on the ____ day of December, 1918, falsely pretended and represented to C. A. Pearcy that he was the owner of two horses, which were then in Scott county, and he was thereby induced to give the defendant in exchange for said two horses one blue mule and one sorrel horse, the property of the said Pearcy, of the value of $250.

There was a trial and conviction on November 24, 1919, which was set aside, and a new trial granted. The cause was again tried on July 19, 1920, at which defendant was found guilty, and his punishment assessed at imprisonment in the penitentiary for a term of two years.

The defendant had lived in Scott county, but removed to Pemiscot county in March, 1918, after which, on August 20, 1918, he executed a chattel mortgage conveying to Elisha Johnson and G. F. Norman the following described personal property then in Scott county:

"13 head horses and mules, and all that I now own. 2 horse colts coming two years old. All the above property can be identified by G. F. Norman. * * * All the above live stock to be kept in Scott county."

This mortgage was given to secure a note of even date (amount not stated) due on demand, payable to the mortgagees at Citizens' Bank of Sikeston, with interest from date at 8 per cent., and was acknowledged and filed for record August 21, 1918, in the recorder's office in Scott county.

The defendant owned a small farm in Pemiscot county, which he leased to the prosecuting witness, Pearcy. He also sold Pearcy a blue mule, sorrel horse, and other personal property. Pearcy testified that after this deal, on December 31, 1918, the defendant swapped or traded him two young horses which defendant said were then on his father's farm in Scott county, the defendant taking in trade the blue mule and sorrel horse heretofore mentioned; that defendant guaranteed the young horses to be in as good condition as when Pearcy saw them; that he took them on that condition; if they were not, the trade was not to go through; that defendant hired a boy and a negro then working for Pearcy to take the mule and horse and haul some of defendant's "stuff" to Scott county, "agreeing to send the young horses back by them." Pearcy never saw the boy or the negro afterwards. Pearcy testified that soon after this trade he went to see defendant's father, G. P. Norman, on his farm in Scott county, and told him what he had come after; that he had seen the defendant, who told him that the horses were at his father's, and to go out there and get them; that he knew when he made the trade that the horses were in G. F. Norman's pasture; that witness helped defendant remove these two horses and the other stock belonging to defendant to his father's pasture before defendant moved to Pemiscot county; that at the time witness went to Scott county after the stock he saw defendant at Sikeston, who told him he would find them in his daddy's pasture; that he went there and told them his business, and they refused to let him have them. The horse and mule he traded to defendant were worth $270.

The state read in evidence the chattel mortgage over the defendant's objection.

For the defendant, George F. Norman testified he lived in Scott county; that about February 18, 1919, Pearcy and his son, the defendant, came to his house and stayed all night; he came back on Sunday, April 13, and said he had bought the colts and wanted them.

"I told him to go over to Leslie's and get an order for them, and I will let you have them, or my boy will drive you over in the car, and if he will tell the boy to let you have the horses, we will let you have them, and he wouldn't do it, and went off mad. I did not refuse to turn the horses over on account of the mortgage. Leslie had a right to sell them; they were his horses."

Elisha Johnson, one of the mortgagees, testified that he never had any objection to Leslie Norman's selling or trading the horses.

Pearcy testified in rebuttal that he tried to buy these horses at the time he went to Sikeston to move Leslie Norman to Pemiscot county, some time in March, and offered him any kind of a price. He thought they were regular pictures.

We have omitted the testimony of the defendant and other witnesses as not necessary to a consideration of the questions arising in the case.

1. The appellant insists, and the learned Attorney General frankly concedes, that the information is fatally defective, in that it does not allege that the defendant knew the alleged representations were false. We think the objection is well taken. The scienter should have been pleaded. Kelley's Crim. Law and Practice (3d Ed.) § 704a, p. 631; State v. Young, 266 Mo. 723, 731, 182 S. W. 975; State v. Janson, 80 Mo. 97. In State v. Bradley, 68 Mo. 140 loc. cit. 142, it was said:

"In regard to the representation as to the title, we are of opinion that the indictment is defective in failing to allege that the defendant knew that he had no title to the land at the time he represented himself to be seized in fee. The defendant's knowledge of the falsity of the pretense is material, and must always be averred unless the pretenses are of such a character as to exclude the possibility of the defendant not knowing of their falsity."

2. The defendant objected to the introduction of the chattel mortgage, because, among other reasons, the information is not based upon and makes no reference to it.

In State v. Stowe, 132 Mo. 199, 33 S. W. 799, the indictment charged the defendant with having induced the prosecuting witness, Waugh, to trade, exchange, and deliver to the defendant two horses for certain other horses, which the defendant falsely represented himself to be the owner of, and to be free and clear of all incumbrances, whereas the defendant was not the owner thereof, but, in truth and in fact, there was an incumbrance on said horses; that is to say, there was, on the ____ day of September, 1892, a legal, valid, and subsisting mortgage unpaid and unsatisfied on said horses—the names of the mortgagor and mortgagee being unknown to the grand jurors, as he, the said defendant, then well knew, etc. Judge Sherwood said:

"The sufficiency of this indictment, being questioned by a motion in arrest, will now require examination, and this would be our duty even were no such motion filed, as the indictment is...