State v. Richman

• Decision Date: 12 March 1941
• Docket Number: 37451
• Parties: The State v. Max Richman, Appellant
• Court: Missouri Supreme Court

148 S.W.2d 796

347 Mo. 595

The State v. Max Richman, Appellant

No. 37451

Supreme Court of Missouri

March 12, 1941

Appeal from Iron Circuit Court; Hon. Edward T. Eversole Judge.

Reversed.

Henry J. Schmandt for appellant.

(1) The information on its face alleges facts which bring the case wholly and exclusively within the purview of Section 4305, Revised Statutes 1929, pertaining to the drawing of checks on insufficient funds with intent to defraud, which said offense is a misdemeanor. However, the information attempts to base the offense upon Section 4095, which makes it a felony to obtain property under false pretenses. Section 4305 is a special statute enacted subsequent to Section 4095, which is a general statute, and therefore the special statute prevails to the extent of taking the offense of drawing checks on insufficient funds with intent to defraud out of the false pretense section. State v. Harris, 87 S.W.2d 1029; State v. Gehner, 280 S.W. 416; State v Green, 87 Mo. 583; State v. De Bar, 58 Mo. 395; State v. Green, 24 Mo.App. 227; State v Foster, 187 Mo. 610; State v. Marshall, 211 N.W. 252; 59 C. J. 1057; 16 C. J. 55; Secs. 4305, 4095, R. S. 1929. (a) Since the facts as set out in the information and as adduced at the trial fall directly within the misdemeanor statute, and since the information was filed more than one year after the commission of the alleged offense, the offense, if any, was barred by Section 3393, which provides that no person shall be prosecuted for a misdemeanor unless prosecution be instituted within one year after the commission of the offense. Sec. 3393, R. S. 1929. (2) The information is fatally defective in that it fails to aver that the Potosi Auction Co., by reason of the alleged false pretenses made by the defendant, did deliver to the defendant the personal property described in the information. State v. Kelly, 170 Mo. 151; State v. Hubbard, 170 Mo. 346; State v. Phelan, 159 Mo. 122; State v. Saunders, 63 Mo. 482; State v. Weeks, 77 Mo. 496; State v. Belew, 79 Mo. 584. (3) The information is fatally defective in that it fails to negative by special averment the truth of the pretenses alleged. State v. Phelan, 159 Mo. 122; State v. Peacock, 31 Mo. 413; State v. Delay, 93 Mo. 98; 25 C. J. 626. (4) The demurrer to the evidence offered by defendant should have been sustained and a verdict of acquittal directed by the court, since the proof is wholly insufficient to show the defendant guilty of obtaining property under false pretenses. State v. Eudaly, 188 S.W. 110.

Roy McKittrick, Attorney General, and B. Richard Creech, Assistant Attorney General, for respondent.

(1) Information plainly and succinctly avers and sets forth all the necessary elements. State v. Young, 266 Mo. 726, 183 S.W. 305; State v. Young, 195 S.W. 998; State v. Faxton, 166 Iowa 181, 147 N.W. 347; State v. Loesche, 180 S.W. 875. (2) The trial court did not err in overruling defendant's motion to quash State v. Lichliter, 95 Mo. 405. However, not necessary for the information to specifically allege "that the Potosi Auction Company by reason of the alleged false pretenses made by defendant did deliver to the defendant the personal property described therein," as contained in appellant's motion for new trial Point One. (a) "Did then and there obtain" was sufficient. State v. Switzer, 63 Vt. 604, 22 A. 724; State v. Bowdry, 145 S.W.2d 129; Commonwealth v. William Delvin, 141 Mass. 423. (b) Information properly alleges that the defendant knew that he did not have sufficient funds in or credit with said bank. (3) The contention of the appellant that the information shows on its face that the offense, if any, is under Section 4305, Revised Statutes 1929, is not well taken. State of Oregon v. Hammelsy, 96 P. 865; 17 L. R. A. (N. S.) 244; later digest of cases found in 27 L. R. A. (N. S.) 1032, 52 L. R. A. (N. S.) 919. (a) The check alleged and set forth in the information is a "false token" within the meaning of Section 4095. People v. Donaldson, 70 Cal. 116, 11 P. 682; 16 Words & Phrases (Perm. Ed.), p. 179. (b) The check alleged and set forth in the information is a "false writing" within the meaning of Section 4095, supra. State v. Whitaker, 129 P. 534; Barton v. People of Illinois, 10 L. R. A. 302. (c) The property of the Potosi Auction Company was parted with and the defendant received the same. Therefore, the crime was consummated. State v. Shaffer, 89 Mo. 279. (d) Respondent contends the "check" was an inferential representation. State v. Bowdry, 145 S.W.2d 129. (4) The trial court did not err in overruling the instruction in the nature of a demurrer at the close of the State's case, defendant failing to stand thereon. State v. Bigley, 247 S.W. 171; State v. Crunkleton, 278 S.W. 982. (5) There was substantial evidence to support the verdict.

Cooley, C. Westhues and Bohling, CC., concur.

OPINION

COOLEY

Defendant below, appellant here, was convicted, on trial to a jury, of obtaining property by false pretenses was sentenced to two years' imprisonment in the penitentiary, and has appealed. The main question and we think the decisive question presented by the appeal is whether the offense charged and proved, if any was proved, constitutes violation of Section 4095, Revised Statutes 1929, Mo. Stat. Ann., p. 2894, which we may refer to as the false pretense statute, or comes under Section 4305, Revised Statutes 1929, Mo. Stat. Ann., p. 2998. If said Section 4095 governs, the offense, if any, was a felony, the value of the property alleged to have been obtained having been more than $ 30. If Section 4305 governs, the offense, if any, was a misdemeanor, and prosecution therefor was barred by the one year Statute of Limitations, Section 3393, Revised Statutes 1929, Mo. Stat. Ann., p. 3079, because the prosecution herein was not instituted until more than a year (about seventeen months) after the alleged commission of the acts charged. In view of the disposition we feel constrained to make of this case, a brief, summarized statement of the facts will suffice.

For twenty years or so defendant had been engaged in buying and selling cattle and other livestock. For a number of years the Potosi Auction Company, a copartnership (which for brevity we shall call the auction company), was engaged in selling livestock at auction. On March 12, 1938, said auction company held a sale at which defendant bid in stock amounting to $ 784.25, for which sum he gave the auction company his check, payable to it, drawn on the Farmers & Merchants Bank, of Eureka, Missouri. The check was presented to said bank on March 14th and payment was refused because of insufficient funds. The bank records showed that on March 12th defendant had on deposit subject to check a balance of only $ 27.79 and on March 14th, $ 23.79. It is the property bought by defendant at the sale on March 12th that he is accused of having obtained by false pretenses. Neither at the time of the sale nor prior thereto, nor at the time of giving the check was there any conversation between defendant and any member of the auction company or between defendant and the clerk of said company who acted for the company at the sale and to whom the check was delivered. The clerk testified that he wrote out the check and defendant signed it and that was all -- there was "no conversation, no representations." Briefly, the only "representations" made by defendant consisted of his signing and delivering the check.

Defendant had done business with the auction company for a "long time," (at least six or eight years) and had given that company numerous checks which had always been paid. The company continued to do business with defendant for a considerable time after the occurrence here in question. A Mr. Turner, only member of the auction company who testified, said that defendant told him later he would make the check good but did not do so. [In this connection there was a subsequent payment of $ 100 credited to defendant's account, but whether on this particular check or not is not quite clear and is perhaps here immaterial.]

For quite a number of years prior to the occurrence here in question defendant had carried a bank account with the Farmers and Merchants Bank of Eureka and had done his banking business with and through that bank. It appears he did an extensive business and that his bank account might well be characterized as an active one. He would on many occasions buy and ship cattle to an East St. Louis Commission Company, but a draft on said commission company and check on his bank -- said Farmers and Merchants Bank -- and the bank would pay his checks before realizing on the drafts, although, unless the drafts were honored, the checks would overdraw defendants account. This question and answer appears in the testimony of the cashier of the bank -- (a State's witness);

"Q. Isn't it a fact that the bank's arrangement with Mr. Richman was simply this, -- he could go out and buy cattle, and write checks on your bank, and give drafts drawn on the commission company and you would pay the checks before you received the payments from these commission companies? A. Yes, sir.

"Q. Isn't it a fact that the Farmers and Merchants Bank paid checks many times for Mr. Max Richman, when he didn't have any money in the bank? A. We didn't have any such arrangement with him.

"Q. Isn't it a fact that the bank paid them? A. Yes, sir, we paid drafts when they were presented."

Without further detail it may be said that whether or not there was any definite "arrangement" or agreement that the bank would pay defendant's checks before receiving the proceeds of drafts drawn by him on commission companies to which he shipped stock, the bank did on numerous occasions do so. On the occasion in...