State v. Page

• Decision Date: 13 March 1945
• Docket Number: No. 26731.,26731.
• Citation: State v. Page, 186 S.W.2d 503 (Mo. App. 1945)
• Parties: STATE v. PAGE.
• Court: Missouri Court of Appeals

186 S.W.2d 503

STATE v.PAGE.

No. 26731.

St. Louis Court of Appeals. Missouri.

March 13, 1945.

Rehearing Denied April 10, 1945.

Appeal from St. Louis Court of Criminal Correction, Division No. 2;David W. Fitz Gibbon, Judge.

"Not to be reported in State Reports."

Ignatius Page, an attorney, was convicted of obtaining money under false pretenses from his client, and he appeals.

Affirmed.

Ignatius Page, of St. Louis, for appellant.

William C. Lochmoeller, Pros.Atty., and Jasper R. Vettori, Associate Pros.Atty., both of St. Louis, for respondent.

HUGHES, Presiding Judge.

Defendant, who for many years has held a license to practice law, was charged by way of an information filed on March 4, 1944, by the associate prosecuting attorney in the St. Louis Court of Criminal Correction, under Section 4487, R.S.1939, Mo. R.S.A. § 4487, with obtaining money under false pretenses, in that the defendant, on the 2nd day of October, 1943, agreed with one Janie Daniels, for and in consideration of the sum of $75, to file and prosecute two divorce actions, one for the said Daniels and the other for one Susie Mae Bandy, against their respective spouses; that thereafter, on the 4th day of December, 1943, the defendant unlawfully, intentionally, falsely and designedly, with intent to cheat and defraud the said Daniels, did falsely pretend and represent to him, the said Daniels, that hethe defendant had filed divorce actions on behalf of said Daniels and Bandy, and that because of his inability to procure service upon the defendants in said divorce actions in the customary way, he would require the additional payment to him of $25 to cover the costs of publication; and the said Daniels believing the said false pretenses and representations, to-wit, that the divorce actions had been filed, to be true, and relying and confiding in the same and being deceived thereby, was induced by reason thereof to pay to the defendant $25; and the defendant by means of the said false pretenses and representations unlawfully and designedly did obtain the said $25 with intent to cheat and defraud the said Daniels of the same; whereas, in truth and in fact the defendant, on the 4th day of December, 1943, had not then nor previous thereto filed divorce actions on behalf of said Daniels and Bandy, or either of them, all of which defendant then and there well knew.

A large part of the record is made up of objections and motions and affidavits of the defendant attacking the information and the jurisdiction of the Court of Criminal Correction on the erroneous theory that the information is a charge of obtaining $100 by false pretenses, that is, $75 on one occasion and $25 on another occasion, and therefore would constitute a felony which is not cognizable in the Court of Criminal Correction.The information does not bear cut such contention.No charge is made that the defendant obtained the $75 by false pretenses, and the reference to the $75 in the information is purely historical and leading up to the charge, which is that of obtaining $25 by false pretenses.The gravamen of the offense charged was that defendant having been employed and paid as an attorney to institute and prosecute the two divorce actions falsely pretended and represented that he had instituted the suits, and thereby designedly obtained $25 with intent to cheat and defraud his client of the same.The information followed and used the wording of the statute and charged a misdemeanor.

The case originated in Division No. 1 of the Court of Criminal Correction and was removed on defendant's application to Division No. 2, where it was called for trial on April 18, 1944.The defendant asked for further time in which to procure the presence of witnesses.He at no time filed a proper formal motion for a continuance, nor called the attention of the court to the absence of any particular witness and of the evidence he expected to obtain from the absent witness, other than one witness who was a prisoner in the workhouse and whose presence was procured, and the defendant did not call him to the witness stand, and one other witness alleged to be out of the City, with no showing of what diligence had been used to procure the presence of either witness.Defendant did state that those two witnesses would say "that Janie Daniels and Susie Bandy, requested him to withhold proceedings, and that they refused to sign the affidavit to the divorce petition."Such testimony would not have disproved the charge against defendant.Not only so but from the whole record the only time defendant ever asked his clients to sign an affidavit to a divorce petition was while he was at the prosecuting attorney's office after complaint had been made, and he there produced two typewritten affidavits that had been used in other divorce cases, with the signatures partially erased, and with no petitions attached thereto, and which he asked his clients to sign at that time and they refused because no petitions were attached.

A panel of eighteen jurors was called, and during the voir dire examination, one of the jurors, Mr. Novack, who said he had never served as a juror in either a civil or criminal case, was questioned by defendant as to whether he would give the defendant the benefit of a (substantial) doubt.The juror answered that he would, and then the following rather unintelligible and confusing questions and answers:

"Q.With no doubt existing in your mind, to retire to the jury room, pass on, after the court submits the case to you for consideration, you go to the jury room, twelve of you will be in there and no doubt in your mind?A.No, sir.

"Q.If you had one you wouldn't know?A.No, sir."

Then the following occurred:

"Mr. Page: If the Court please, I move to strike the juror.

"The Court: Under the law, the defendant is entitled to the benefit of doubt, in other words, if you have any doubt as to the defendant's guilt, you should acquit the defendant, now, when you go to the jury room, you take that doubt in your mind, will you give the benefit of the doubt to the defendant?A.Yes, sir."

We think no disqualification of the juror was shown.

The panel of eighteen jurors having been accepted by the court, the assistant prosecuting attorney and the defendant each struck three from the jury list, without objection as to the number that had been qualified or the number the defendant had a right to peremptorily challenge.Of course, under Section 4063, R.S.1939, Mo. R.S.A. § 4063, there should have been a panel of twenty jurors qualified and the State and the defendant were each entitled to four peremptory challenges.However, the defendant made no objection at the time nor at any time during the trial, but first raised the question in the motion for a new trial, which was too late and was in effect a waiver.State v. Long, 324 Mo. 205, 22 S.W.2d 809.

In what purports to be a motion for new trial, covering fifteen typewritten pages, most of which is mere argument mixed in a confused mass and put or thrown together without order, the defendant charges the trial court with being biased and prejudiced against him; with holding a mock trial; with not according him a fair trial; and with "running" his witnesses from the stand and not allowing them to testify.

The record of the trial covers 240 typewritten pages and occupied three days of the court's time.From the beginning to the end the court exhibited a remarkable degree of patience and fortitude, and gave every consideration to the rights of the defendant, whose technical and apparently trifling and repeated objections and motions must have been most trying.As to "running" witnesses from the stand, the following is a fair sample of what occurred after a witness had been fully examined and cross-examined:

"The Court: Is that all, Mr. Page?(No response.)

"The Court: Are you through, Mr. Page, with the witness?(No response.)

"The Court: Is that all, Mr. Page?(No response.)

"The Court: That is all Mr. Witness, you may step down."

There is not the slightest basis for defendant's criticisms of the court and the conduct of the trial.

Defendant complains that his demurrer to the evidence should have been given.This contention is primarily based on the erroneous theory already referred to that the information charged a felony and not a misdemeanor.

The evidence was to the following effect:

That the appellant for a period of many years was a duly licensed and practicing attorney at law in the City of St. Louis, Mo.That on October 2, 1943, he was employed by one Janie Daniels to file and prosecute divorce actions for Janie Daniels and one Susie Mae Bandy and against their respective spouses.That the consideration for the employment was $75 which was paid in installments, the last on October 19, 1943.That thereafter on December 4, 1943, appellant told Janie Daniels that he had filed the divorce actions but could not secure an entry of appearance from the spouse of Susie Mae Bandy, and would have to proceed by securing service by an order of publication which would cost an additional $25.That the witness Janie Daniels relied upon and believed the representation that the suits had been filed, and paid appellant the additional sum of $25 on December 4, 1943.That later, to-wit, on January 27, 1944, he, Janie Daniels, learned for the first time that the divorce actions against his and the spouse of Susie Mae Bandy had not been filed on December 4, 1943, nor at any time prior thereto.There is evidence in the record to show that Janie Daniels and Susie Mae Bandy were never asked to sign petitions for divorce, and that not until the 2nd day of March, 1944, were they ever tendered statutory affidavits for signature and these they refused to sign because they were not attached to any petition and for the further reason they apparently applied to other litigants whose names had been signed to them and had been scratched out.Four witnesses...