State v. Selleck

• Decision Date: 04 December 1917
• Docket Number: No. 20360.,20360.
• Citation: 199 S.W. 129
• Parties: STATE v. SELLECK.
• Court: Missouri Supreme Court

199 S.W. 129

STATE v. SELLECK.

No. 20360.

Supreme Court of Missouri, Division No. 2.

December 4, 1917.

Appeal from St. Louis Circuit Court; Karl Kimmel, Judge.

Ellroy V. Selleck was convicted of an offense, and he appeals. Affirmed.

T. J. Rowe, of St. Louis, for appellant. Frank W. McAllister, Atty. Gen., and Henry B. Hunt, Asst. Atty. Gen. (Ferris & Rosskopf, of St. Louis, of counsel), for the State.

WALKER, P. J.

The appellant was charged in an indictment preferred by the grand jury of the city of St. Louis with having, through false pretenses, obtained signatures to a written instrument with intent to cheat and defraud as such offense is defined in section 4565, R. S. 1909. Upon a trial he was convicted and sentenced to two years' imprisonment in the penitentiary. From this judgment he appeals.

On account of the manner in which the errors complained of have been submitted for our consideration, a statement of the facts is deemed unnecessary. Whatever may have been the errors complained of during the progress of the trial, a preservation of same in a motion for a new trial in accord with the requirements of the statute and our repeated rulings thereon is a prerequisite to our review of them upon appeal.

The motion for a new trial is as follows: First. Because the verdict is against the law. Second. Because the verdict is against the evidence and is not supported by the evidence in the case. Third. Because the court erred in admitting, over the objections of the defendant, illegal, incompetent, and improper evidence offered by the state. Fourth. Because the court refused to admit legal and competent evidence offered by the defendant. Fifth. Because the court gave the jury illegal and improper instructions, over the defendant's objections. Sixth. Because the court failed to instruct the jury upon all the questions of law necessary to enable the jury to arrive at a correct verdict. Seventh. Because the court refused to give legal and proper instructions offered by the defendant.

The points stressed by appellant in support of this motion are as follows: (1) The court should have instructed the jury at the close of the state's case to find the defendant not guilty, as requested by defendant. (2) Instruction No. 1 is erroneous and should not have been given, because there is no evidence upon which to bottom said instruction. (3) A representation which amounts merely to an expression of opinion, however, false and fraudulent, is not an indictable false pretense; for it is not a statement of a fact, the essential requisite of a pretense, but rather a state of the mind.

I. The first ground urged is based upon appellant's instruction asked at the close of the state's case in the nature of a demurrer to the evidence to the effect that:

"The court declares the law to be that under the pleading and proof the defendant is not guilty of the offense charged in the indictment, consequently you are instructed to return a verdict of not guilty."

Upon the refusal of this instruction to which exceptions were properly saved, the appellant proceeded to offer evidence in his own behalf. Under this state of the record he will be deemed to have waived his demurrer. Had he renewed it at the close of all the testimony, it would be incumbent upon us to consider same with reference to all the evidence in the case. State v. Cummings, 248 Mo. loc. cit. 518, 154 S. W. 725. However, if it be held as indicated in certain civil cases (Weber v. Strobel, 236 Mo. loc. cit. 660, 138 S. W. 188, and cases cited) that if appellant preserves his alleged error as to the overruling of his demurrer in his motion for a new trial as he has done in a general way herein, he is entitled to have it reviewed, this court will not in such review undertake to overrule ...