State v. Patterson
| Decision Date | 29 May 1917 |
| Citation | 196 S.W. 3,271 Mo. 99 |
| Parties | THE STATE v. WALTER F. PATTERSON, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. William T. Jones Judge.
Affirmed.
James M. Rollins, E. A. Halter and Joseph Reilly for appellant.
(1) The demurrer to the information, the demurrer at the close of the State's case and the demurrer at the close of the whole case should have been sustained for the reason that the information failed to set out the language of the accusation and threat in haec verba, alleged to have been made by the defendant. State v. Hayward, 83 Mo. 307; 1 Bishop Crim. Prac., sec. 81. The information is based on Sec. 4532 R. S. 1909. It pleads only a conclusion, and does not plead the necessary constitutive facts of a valid information. State v. Murphy, 141 Mo. 270; State v. Miller, 132 Mo. 267; State v. Chandler, 132 Mo. 165. The prosecuting witness positively and repeatedly swore that he gave the notes and gave the money to Patterson for no other reason than to have Patterson get back and destroy his signed statement from Deuser. The evidence was in total variance with the allegations of the information. State v. Parris, 259 Mo. 435; State v. Brewer, 259 Mo. 448; State v. Middleton, 259 Mo. 449; State v. Loyd, 259 Mo. 449. (3) The entire record of this case is void of any "threat to accuse" or of "any accusing" of the prosecuting witness, Ibsen. The State, therefore, utterly failed to make a case against the defendant, Patterson. To accuse is to bring a charge against one before some court or officer and the person thus charged is the accused. A threat to accuse of a crime does not refer to accusing by way of railing, or slander, or bearing false witness under a false accusation made by others, but the institution or participation in the institution of a criminal charge before some one held out as competent to entertain such a charge as a lawful course. According to Black's Dictionary of Law to "accuse is to bring a formal charge of crime before a competent court or officer." The defendant did not make any charge against Ibsen, and did not threaten to go to any prosecuting officer and "accuse" Ibsen. The testimony of O. E. Boehlinger as to a so-called "similar crime" was incompetent. The Boehlinger matter was no crime. State v. Hyde, 234 Mo. 250; State v. Palmberg, 199 Mo. 233; State v. Parker, 96 Mo. 382; State v. Lockett, 168 Mo. 480; State v. Martin 34 Mo. 85; State v. Teeter, 239 Mo. 475. Where another distinctive offense is relied on to show intent, the other act must be of a precisely similar nature as the act for which the defendant is on trial. Underhill on Criminal Evidence, sec. 89; State v. Hyde, 234 Mo. 224. Proof of another offense is not admissible in robbery cases for the purpose of showing intent. State v. Spray, 174 Mo. 569; State v. Wellman, 253 Mo. 362.
Frank W. McAllister, Attorney-General, and John T. Gose, Assistant Attorney-General, for the State.
(1) The information is sufficient because it fully informs defendant of the offense with which he is charged, and the motion in arrest was properly overruled. Sec. 5115, R. S. 1909; Regina v. Norton, 8 Car. v. Payne, 671; Hanselman v. People, 168 Ill. 172; Kelley v. People, 192 Ill. 119; Davis v. State, 3 Harris & Johns (Ind.), 478; Bradford v. State, 53 Am. St. 34. Defendant not being informed against for sodomy, and the information not having attempted to set out any of the elements of sodomy, appellant's authorities are not in point. Sec. 4726, R. S. 1909, made sodomy a felony, but section 1, Laws 1911, p. 198, which repealed said section, did not wipe sodomy off the list of crimes. The fact that it is not called by name therein does not exclude sodomy. The language of the statute is broad enough and does include the specific offense of sodomy, buggery, beliation and bestiality. Honselman v. People, 168 Ill. 175; State v. Katz, 266 Mo. 493; State v. Pfeifer, 267 Mo. 23; State v. Wellman, 253 Mo. 302. (2) The attempt of counsel to limit the meaning of "accuse" to "a formal charge of crime before a competent court or officer" is rather "far fetched," but if that construction of the term were possible, the jury might infer this from evidence of Patterson's claim to be an officer, the badge, call for the patrol wagon, and numerous other circumstances in this case. (3) The admission of the testimony of O. E. Boehlinger was not error. Rex v. Egerton, Russell & Ryan, 375; State v. Nathan, 5 Rich. L. 219; Ballomly v. United States 1 Story, 135; Rex v. Hogg, 19 Eng. C. L. 420; State v. Balch, 136 Mo. 109. The defendant testified that he took the notes as compensation for services and from no criminal intent, motive or design. Other instances of like character were peculiarly admissible. State v. Myers, 82 Mo. 562. In this last case, which was for robbery, the authorities were exhaustively reviewed and it is held that where intent is of the gist of the offense, other similar instances are admissible whether they happen at the same time or before or subsequent. When defendant claimed the notes were taken for services, then surely the similar attempt upon Bohlinger was admissible to show whether the taking of the notes was with the intent charged in the information. The mere fact of evidence going to prove another felony is not sufficient to exclude it, if, in itself, it be good evidence. It is not as evidence of a felony, but as evidence of prisoner's intentions that it may be received. Queen v. Dossett, 2 Cox C. C. 243; 3 Rice, Criminal Evidence, 457-464.
Information was filed in the circuit court of the city of Saint Louis, at the April Term, 1915, charging the defendant, jointly with Frederick W. Deuser and Edward C. Butler, with robbery in the third degree under section 4532, Revised Statutes 1909, by threatening to accuse one Peter Ibsen of a felony and thereby extorting from him certain promissory notes, signed by him and payable to the appellant. The defendant Patterson was granted a severance and on his separate trial was convicted, and his punishment assessed at a term of five years in the penitentiary; from this judgment he appealed.
Ibsen was fifty-three years of age, a native of Denmark, but a naturalized citizen of the United States, and vice-consul for Denmark. According to the evidence produced by the State, Patterson, Deuser and Butler conceived a scheme to extort money from Ibsen, and in pursuance of the scheme Butler, who was a boy about nineteen years of age, sought the acquaintance of Ibsen at the latter's candy store, 912 Olive Street. After Ibsen and Butler had become acquainted they took several car rides together in different parts of the suburbs and on one occasion, about the 13th of August, 1914, while they were at Creve Coeur Lake and in an obscure part of the park, Deuser and Patterson suddenly came upon them and made the threats which are the basis of the charge set out in the information. Presently Deuser took Butler to one side and pretty soon returned with him. Butler was crying, and Deuser said he had "confessed." Before they separated they got Ibsen in a state of fear which remained with him for some days. He was induced to sign a statement which he testified contained only his name, address and occupation, and the name and address of Butler. In the subsequent negotiations Patterson produced this paper in which Ibsen asserted additional words had been written and among them the words "for immoral purposes." The defense claimed that the paper was in the same shape when produced afterwards as when it was signed.
Patterson continued to work on Ibsen's fears with threats of exposure and the next day extorted $ 97 in cash from him, and a few days later induced him to sign two notes, one for two hundred dollars and one for six hundred and fifty dollars, both payable to Patterson. These notes, which are the ones mentioned in the information, were subsequently paid by Ibsen to some trust company to whom Patterson negotiated them. On the delivery of these notes Patterson burned in Ibsen's presence the statement which the latter had signed at Creve Coeur Lake.
Patterson, finding Ibsen easy and productive, continued to work him with effect. Some months after he got the two notes he went to Ibsen and told him that he had lost $ 150 in discounting the notes and induced Ibsen to pay him another $ 150. Some time in March, 1915, about a month after Patterson got the $ 150, he again got in communication with Ibsen and told him, "Deuser has played a trick on us," by retaining a photographic copy of the statement Patterson had burned in Ibsen's presence. He produced a note for $ 800 and induced Ibsen to sign it for the purpose of quieting Deuser. During the previous negotiations Patterson, in his talks with Ibsen, had always mentioned Deuser as the person who was to be feared, intimating that there was danger of both Ibsen and himself getting into trouble through the instrumentality of the police if Deuser were not hushed up.
Ibsen made no complaint to any officer about the matter, but kept it to himself. The $ 800 note mentioned was found on Patterson while under arrest on another criminal charge; the police department with this clue hunted up Ibsen and discovered the story of his robbery.
Patterson nowhere in his defense denied having received the notes mentioned in the information or having cashed them, but says they were give by Ibsen voluntarily so that he could cash them and raise money "to get Butler out of town." His defense throughout was that Ibsen was guilty and in constant terror lest Butler would charge him with an unmentionable crime. Patterson did not remember receiving the $ 97 cash, but admitted Ibsen gave him a...
To continue reading
Request your trial