State v. Rosenberg

• Decision Date: 23 April 1901
• Citation: 162 Mo. 358,62 S.W. 435
• Court: Missouri Supreme Court
• Parties: STATE v. ROSENBERG et al.<SMALL><SUP>1</SUP></SMALL>

62 S.W. 435

162 Mo. 358

STATE v. ROSENBERG et al.¹

Supreme Court of Missouri, Division No. 2.

April 23, 1901.

FALSE PRETENSES — GOODS — SALE — DELIVERY — PAYMENT — POSSESSION — FRAUD — INTENTION NOT TO PAY — ACCOMPLICE — SUBORDINATE CAPACITY — HARMLESS ERROR — INTENT — EVIDENCE — ADMISSIBILITY — OBJECTION — SUFFICIENCY — INSTRUCTION — COMPLETENESS — EXCEPTION — NECESSITY.

1. Rev. St. 1889, § 3564, provides that every person who shall contract with another person for the purchase of any goods to be paid for on delivery, with the intent to cheat and defraud such person, and in pursuance of such intent shall sell the property after obtaining possession, or secrete the same before paying the owner, shall be punished in the same manner as for feloniously stealing the property. Held that, where defendant was indicted for obtaining possession of sugar with the intent to cheat and defraud the seller, it was proper to charge that if the jury should find from the evidence that, by the terms of the purchase of the sugar, it was agreed that it should be paid for on delivery, and that it was to be received by the defendant at plaintiff's warehouse, and to be paid for immediately thereafter at defendant's store, then such purchase was for payment on delivery, but that if the jury should find that the sugar was sold on credit, and to be paid for at a time subsequent to delivery, the defendant should be acquitted.

2. B. sold defendant 20 barrels of sugar, to be paid for on delivery. B.'s clerk delivered 5 barrels to H., defendant's son, at B.'s warehouse, on March 30th, at 2 p. m., and at 3:30 called at defendant's store, but H. had not returned, and did not return that afternoon. On March 31st the clerk stayed at defendant's store most of the day, but H. did not return, and the sugar could not be found in the store, and on April 1st it was closed by the sheriff. On March 30th defendant's store was well stocked with goods, and on that day and the day following dray loads of goods were removed without being checked, and subsequently a part of them were found hidden in a barn, and another portion at a place belonging to defendant's son-in-law, in another state, and another part in the basement of a house in Chicago, to which defendant had removed. H. testified that he delivered the sugar to his father's customers without returning to the store. The other 15 barrels were delivered to an employé of an express company, who left them on a depot platform without taking a receipt for them. Held, that the evidence was sufficient to support a verdict finding defendant guilty of obtaining possession of the sugar with the intent to cheat and defraud the seller.

3. Where defendant's son H., a young man of 20, hauled away from the warehouse goods which defendant had purchased with the intent to defraud the seller, under a contract to which H. was not a party, a conviction of H. for obtaining possession of the goods with intent to cheat and defraud the seller cannot be sustained, since he acted in a subordinate capacity, under the control of his father.

4. Where defendant purchased goods to be paid for on delivery, and his son hauled them, and both were indicted for obtaining possession of the goods with intent to defraud the seller, the fact that the court erroneously charged the jury relative to the liability of the son in aiding and abetting defendant in obtaining possession of the goods was not prejudicial to defendant.

5. R. and H. were indicted for obtaining possession of goods with intent to defraud the seller, and the court charged that both might be convicted, or one acquitted and the other convicted, or both acquitted, according as the jury should find the facts under the instructions of the court, and that the jury should return separate verdicts as to each defendant. Held, that a subsequent instruction that, before the jury could find either defendant guilty, they must find from all the evidence that the goods in question were to be paid for on delivery, under the terms of the sale and purchase, and that there was an express agreement to that effect at the time between the seller and the defendants, was not prejudicial to either defendant, since it required the state to prove more than was necessary.

6. Where defendant was indicted for obtaining possession of goods by promising to pay for them on delivery, with intent to defraud the seller, evidence of purchases from other parties with a fraudulent intent was admissible to show defendant's intent in purchasing the goods in question, though all of the other purchases were not payable on delivery.

7. An objection to evidence merely that it was incompetent was not sufficient to present any question for review.

8. Where the trial court's instructions were not sufficiently full in not pointing out what parts of certain evidence were admissible, and in not restricting certain evidence to the question of intent, but defendant did not except to the instructions on that ground, he cannot question their sufficiency on appeal.

Appeal from St. Louis circuit court; D. D. Fisher, Judge.

Joseph Rosenberg and Harry Rosenberg were convicted of obtaining possession of goods with the intent to cheat and defraud the seller, and they appeal. Affirmed as to Joseph Rosenberg, and reversed as to Harry Rosenberg.

Chester H. Krum, Morton Jourdan, and Winkelman & Baer, for appellant. E. C. Crow, Atty. Gen., Thos. B. Harvey, and H. A. Loevy, for the State.

SHERWOOD, J.

Section 3564, Rev. St. 1889, contains, among other provisions, this one: "Every person who shall, with the intent to cheat and defraud another, agree or contract with such other person or his agent, clerk or servant, for the purchase of any goods, wares, merchandise or other property whatsoever, to be paid for upon delivery, and shall, in pursuance of such intent to cheat and defraud, after obtaining possession of any such property, sell, transfer, secrete or dispose of the same before paying or satisfying the owner or his agent, clerk or servant therefor, shall, upon conviction thereof, be punished in the same manner and to the same extent as for feloniously stealing the money, property or other thing so obtained;" and on this portion of such section was this prosecution based. The count on which the trial occurred was the following: "And the grand jurors aforesaid, now here in court, duly impaneled, sworn, and charged, upon their oath aforesaid, do further present that Joseph Rosenberg and Harry Rosenberg, on the 30th day of March, one thousand eight hundred and ninety-eight, at the city of St. Louis, aforesaid, with the felonious intent to cheat and defraud one M. F. S. Boswell, fraudulently, unlawfully, designedly, and feloniously did agree and contract with the said M. F. S. Boswell, his agent and clerk, for the purchase of certain goods, wares, and merchandise, to wit, 7,149 pounds of granulated sugar, of the value of $361, at and for the price of $361, lawful money of the United States of America, to be paid for by the said Joseph Rosenberg and Harry Rosenberg in cash, upon delivery of said goods, wares, and merchandise, by the said M. F. S. Boswell to them, the said Joseph Rosenberg and Harry Rosenberg, in the city of St. Louis, Missouri; and that the said Joseph Rosenberg and Harry Rosenberg, in pursuance of said fraudulent and felonious intent as aforesaid, did then and there fraudulently, unlawfully, designedly, and feloniously obtain possession of said goods, wares, and merchandise before described under said contract and agreement as aforesaid, and in further pursuance of the said fraudulent and felonious intent before described; and that the said Joseph Rosenberg and Harry Rosenberg, after so obtaining the possession of the said goods, wares, and merchandise as aforesaid, fraudulently, unlawfully, designedly, and feloniously did then and there sell, transfer, secrete, and dispose of the said goods, wares, and merchandise in a manner and to other persons to these grand jurors unknown, before paying or satisfying the said M. F. S. Boswell, the owner of said goods, wares, and merchandise, or his agent, servant, or clerk therefor; and that the said Joseph Rosenberg and Harry Rosenberg have feloniously and fraudulently failed and refused, and still fail and refuse, to pay to the said M. F. S. Boswell, his agent, clerk, or servant, the purchase price of said goods, wares, and merchandise, by payment in cash, as agreed upon as aforesaid, or by payment in any other manner whatever, or to satisfy them therefor in any manner, with the felonious intent to cheat and defraud the said M. F. S. Boswell, against the peace and dignity of the state." The result of the trial was the conviction of Joseph and Harry Rosenberg, and the sentence of the former to four, and the latter to five, years' imprisonment in the penitentiary.

The portion of the section already quoted requires three things in order to constitute the offense here charged: First, an agreement or contract made by the accused with another person, or his agent, clerk, or servant, for the purchase of goods, etc., to be paid for upon delivery; second, with...