State v. Pierce

• Decision Date: 25 May 1928
• Docket Number: No. 27944.,27944.
• Parties: THE STATE v. LEE M. PIERCE, Appellant.
• Court: Missouri Supreme Court

7 S.W.2d 269

THE STATE v. LEE M. PIERCE, Appellant.

No. 27944.

Supreme Court of Missouri, Division Two.

May 25, 1928.

Appeal from Circuit Court of City of St. Louis. — Hon. George E. Mix. Judge.

AFFIRMED.

Laughlin, Frumberg, Blodgett & Russell for appellant.

(1) The trial court should have directed a verdict of not guilty, for the reason that the State's case demonstrated conclusively that the defendant did not make the fraudulent representations charged in the indictment, but that all representations which were relied upon by the person alleged to have been defrauded were made by a third person. State v. Fredericks, 136 Mo. 51. (2) The court should not have given State's Instruction 4, which is simply a definition of the crime of conspiracy and does not advise the jury of what connection that theory has with the present case. It was the duty of the trial court to advise the jury that before they could consider the statements and acts of John H. Green, a co-conspirator, against the defendant, they must first believe and find from the evidence that a conspiracy existed. State v. Kennedy, 177 Mo. 132; State v. Harris, 232 Mo. 317. Where on the trial of two defendants jointly indicted the evidence fails to show a conspiracy, each defendant is responsible only for his own acts. State v. Fredericks, 136 Mo. 51. (3) The court committed error by commenting on the evidence in the presence of the jury. Sec. 4038, R.S. 1919. (4) The court permitted the State to introduce evidence, over the objection of the defendant, that the defendant's company had issued notes and mortgages on many other fictitious automobiles, which were in no way connected with the transaction here in question and which it was not shown were in any way connected with the scheme here under consideration. (5) The court committed error in commenting in the presence of the jury on the failure of the defendant to take the stand in his own defense. Sec. 4037, R.S. 1919. (6) The court should have given defendant's instructions numbered 4, 5 and 6 and submitted to the jury defendant's theory that he was not guilty if the jury believed the fraudulent representations complained of were made by any other person than the defendant. State v. Fredericks, 136 Mo. 51.

North T. Gentry, Attorney-General, and Claud Curtis, Special Assistant Attorney-General, for respondent.

(1) The evidence was amply sufficient upon which to base the verdict of the jury. State v. Smith, 252 S.W. 662; State v. Shout, 263 Mo. 360; State v. Samis, 296 Mo. 471. (2) The remarks of the court were really made in explanation of the reason why the court was making certain rulings on the admission of evidence, and they cannot be said to be prejudicial. State v. Allen, 290 Mo. 278; State v. Walton, 255 Mo. 244; State v. Duestrow, 137 Mo. 87; State v. Musick, 101 Mo. 273; State v. Costello, 252 S.W. 727; State v. Teeter, 239 Mo. 175. (3) The defendant took exception to the remark made by the court, but gave no reason for his objection, but in his motion for new trial he says it refers to the failure of the defendant to testify. Such remarks does not violate Sec. 4037, R.S. 1919, by referring to the defendant's failure to testify. State v. DePriest, 288 Mo. 459; State v. Fields, 234 Mo. 615; State v. Steele, 280 Mo. 63; State v. Ruck, 194 Mo. 416; State v. Hughes, 258 Mo. 264. (4) Appellant's assignments numbered 3, 4, 5, 6, and 7, which attempt to save for review the court's action in the admission of evidence, and the giving and refusing of instructions, are too indefinite. They bring nothing before this court. State v. Standifer, 289 S.W. 856; State v. Murrell, 289 S.W. 859; State v. Vesper, 289 S.W. 862; Laws 1925, sec. 4079, p. 198.

BLAIR, J.

In the Circuit Court of the City of St. Louis, appellant was convicted of the crime of obtaining money under false pretenses and was sentenced to imprisonment in the State Penitentiary for a term of three years. Thereafter an appeal to this court was allowed him.

In substance the indictment charged that on July 27, 1924, appellant was an officer and agent of the North Side Nash Company and, with intent to defraud, falsely, etc., represented to the officers and agents of the Remedial System of Loaning, Inc., a corporation, that the North Side Nash Company was the owner of a certain described automobile and had sold said automobile to one Frank L. Hazelrigg on July 27, 1924, and that in payment therefor, said Hazelrigg had executed and delivered to said North Side Nash Company his promissory note for $1699.50, payable in installments within four months from date, together with a mortgage on said automobile securing said note; that the officers and agents of said Remedial System of Loaning, Inc., believing said false, etc., representations of appellant to be true and relying thereon and being deceived thereby, were induced to and did on said date and at said city loan "the said Lee M. Pierce, as officer and agent of the North Side Nash Co., a corporation," the sum of $1650 and accepted as security therefor said note and mortgage and that appellant, as such officer and agent, then and there and thereby fraudulently, etc., obtained from said Remedial System of Loaning, Inc., the sum of $1650, lawful money of the United States, etc.

Then followed allegations that, as appellant well knew, the North Side Nash Company did not own said automobile and had not sold the same to said Hazelrigg and that said Hazelrigg had not executed a mortgage on said automobile and that the payment of said note was not secured by said mortgage and that "said note and mortgage were false and bogus and executed by defendant to the Remedial System of Loaning, Inc., a corporation, for the purpose and with the felonious intent to cheat and defraud said company." The indictment appears to have been drawn under Section 3343, Revised Statutes 1919. The trial court's instructions were framed under that section. The sufficiency of the indictment and the propriety of instructions under said section were not assailed in this court nor in the motion for new trial below. We are satisfied that the indictment appropriately charged an offense under said Section 3343. The verdict was in proper form, responsive to the indictment and authorized the judgment which was afterward entered thereon in due and approved form.

The main contention is that the evidence did not establish the charge contained in the indictment and was insufficient to justify submission of the case to the jury. Appellant contented himself with offering a demurrer to the State's evidence, stood thereon when the same was overruled, and offered no evidence in his own behalf.

Briefly stated, the evidence offered by the State tended to prove that appellant was president of the North Side Nash Company, a corporation, and that one Green, who was separately indicted, was secretary of said company, as well as secretary of the Remedial System of Loaning, Inc. The other officers of the latter company did not know of Green's official connection with the North Side Nash Company. The Southwest Nash Company of St. Louis was distributor of Nash automobiles for the State of Missouri and southern Illinois, and the North Side Nash Company was under contract to buy all its Nash automobiles from said Southwest Nash Company.

The Remedial System of Loaning, Inc., was engaged, among other things, in loaning money on notes and mortgages taken by the seller when automobiles were sold on installments. Apparently quite an extended course of dealing had occurred between said loaning company and the North Side Nash Company. When the North Side Nash Company would sell an automobile on installments, it would take a note payable to it at certain later dates in stated amounts and would take from the purchaser a mortgage upon the automobile sold as security for such note. Such note and mortgage would then be endorsed over to the loaning company and it would issue its check, payable to the North Side Nash Company, signed by Green, as secretary, and countersigned by the cashier of the loaning company.

The evidence justifies the inference that appellant Pierce and said Green conceived a plan or scheme to defraud the loaning company by means of notes and mortgages executed on fictitious sales of automobiles. About fifteen such sales, involving about $30,000, were shown to have been represented as made. The Hazelrigg transaction was one of these. It was the transaction upon which the prosecution was founded and appears to have been typical of the others.

Hazelrigg was shop foreman for the North Side Nash Company and seems to have been an innocent and unsuspecting tool of Pierce and Green. Upon solicitation by Pierce, Hazelrigg was induced to sign a note for $1699.50, payable to the North Side Nash Company and to execute a chattel mortgage upon an imaginary automobile to secure said note. He did this upon Pierce's representations that the North Side Nash Company needed another automobile for display or demonstration purposes and that Hazelrigg would incur no personal liability to pay the note. Green assured him that everything would be all right. Afterward, when a booklet was sent to Hazelrigg showing when the payments would be due and the amounts thereof, Green took the booklet and assured Hazelrigg that he need not concern himself further about the matter. Hazelrigg heard nothing more from it until subsequent investigation disclosed the fraudulent scheme.

The Hazelrigg note and mortgage described an automobile of the model, serial number and motor number alleged in the indictment. It appears that no such sale ever occurred and that the North Side Nash Company never purchased such an automobile from the Southwest Nash Company.

One Cohen, who was bookkeeper for the North Side Nash Company, seems to have been a party to the fraudulent scheme to the extent, at least, of keeping a so-called "Black Book." Whether he profited personally does not appear....