State v. Shaeffer

• Decision Date: 21 June 1886
• Citation: 1 S.W. 293,89 Mo. 271
• Parties: The State v. Shaeffer, Appellant
• Court: Missouri Supreme Court

1 S.W. 293

89 Mo. 271

The State v. Shaeffer, Appellant

Supreme Court of Missouri

June 21, 1886

Appeal from Jackson Criminal Court. -- Hon. H. P. White, Judge.

Reversed.

J. V C. Karnes and J. W. Beebe for appellant.

(1) The criminal court of Jackson county had no jurisdiction. The money which the defendant is convicted of obtaining was not received in Missouri. Com. v. Van Tuyl, 1 Met. (Ky.) 1; State v. House, 55 Ia. 466; People v. Sully, 5 Parker's Crim. Rep. 142; State v. Wyckoff, 31 N.J.L. 65; In re Carr, 28 Kan. 1; People v Rathburn, 21 Wend. 509; Rex v. Brisac, 4 East, 164; Regina v. Jones, 1 Dennison, 551; (5 British Crown cases reserved); Reg. v. Leach, 7 Cox C. C. 100; S. C., 36 Eng. Law & Eq. 587. Following the above decisions the Traders Bank and its New York correspondent were Shaeffer's agents in presenting and collecting his draft on Blair, and the payment to and receipt by this New York correspondent of the money from Blair made the delivery the obtaining of the money complete. (2) That the Traders Bank and its correspondent, the United States National Bank of New York, were the agents of Shaeffer to collect the draft cannot be doubted. Daily v. Bank, 56 Mo. 94; Gerhart v. Bank, 38 Mo. 60; Montgomery Co. Bk v. Albany City, 7 N.Y. 459; Daniel on Neg. Instruments [1 Ed.] secs. 324-349. (3) Conceding every thing claimed by the state as to the effect of the evidence, yet the defendant in every possible view of the testimony was improperly convicted under Revised Statutes, section 1561. State v. Green, 87 Mo. 583. (4) The court erred in refusing to declare the legal effect of the contract of February 4, 1884. (a) As the defendant was entitled to the presumption that he viewed the contract according to its true legal meaning, it follows that if his intent with regard to it was of importance, the jury should have been instructed as to its legal significance. Otherwise they would not be able to give him the benefit of this presumption. (b) It was the manifest duty of the court to construe the contract to enable the jury to determine the intent of defendant in obtaining the money, the purpose of the prosecuting witness in advancing it, and whether he was in fact "cheated and defrauded." The contract constituted an equitable mortgage, and secured Blair amply for every dollar he advanced in the enterprise, with interest. It is therein expressly stipulated that he shall be repaid "out of the sales of the land." Thus it operated as a specific lien upon the realty, for money, interest and prospective profits. The prosecutor is not only presumed to have considered the contract as a security, but the evidence shows conclusively that he did so regard it when he made his advances. Agreements of this character have uniformly been held to be equitable mortgages. 2 Story Eq. Jur., sec. 1018 and 1020; McQuie v. Peay, 58 Mo. 56; Blackburn v. Tweedie, 60 Mo. 505; Russell v. Southard, 12 How. (U.S.) 139; Henry v. Davis, 7 Johns. Ch. 46; Sweetser's Appeal, 71 Pa. St. 264; Goulding v. Brewster, 9 Wis. 513; Harbison v. Houghton, 41 Ill. 522; Honore v. Hutchings, 8 Bush (Ky.) 687; Curtis v. Buckley, 14 Kan. 449; Purdy v. Bullard, 41 Cal. 444; Case v. McCabe, 35 Mich. 100. It is not necessary that there should be a personal liability. Jones on Mortgages, secs. 70, 72; 2 White & Tudor Leading Cases, section 1991. (5) By the provisions of the agreement the parties became prima facie partners inter sese from its date. It was the obvious intention of the partners to form a copartnership. Pooley v. Driver, 5 Ch. Div. 458; Parker v. Canfield, 37 Conn. 250; Richards v. Grinnell, 63 Iowa 44; Hunt v. Erickson, 20 Reporter (Mich.) 501; Beauregard v. Case, 91 U.S. 134; Plunkett v. Dillon, 4 Houst. 338; Smith's Leading Cases (8 Ed.) 1343. (6) If the parties were co-partners from the date of the contract of February 4, in the business of purchasing, handling and selling the lands designated, then the prosecutor in advancing his money acted as a partner, and did not part with his interest in the funds, as contemplated by the statute, nor did the defendant obtain the money within the meaning of the act. To constitute the crime of obtaining money by means of false pretenses, it must not only appear that the prosecutor intended to part with the possession, but with the title also. If the money is advanced for a specific purpose, the prosecutor retaining an interest in the same, a conversion thereof may amount to larceny or embezzlement, but does not constitute the crime of false pretenses, though the possession be obained by fraud. 2 Wharton's Criminal Law (8 Ed.) sec. 1203; Center v. State, 7 Lea, 349; Reg. v. Terkes, 12 Cox C. C. 208; Morse v. People, 99 N.Y. 662. (7) The seventh instruction is erroneous, assuming as it does that defendant had made some admission or confession concerning the act charged in the indictment, whereas there is no evidence in the case upon which such an assumption could possibly be based, and had there been, the court would have erred in assuming the fact to be proved. Fire Ins. Co. v. St. Mary's Seminary, 52 Mo. 480; Peck v. Richey, 66 Mo. 11. (8) The court incorrectly declared the law as to reasonable doubt. U. S. v. McKee, 3 Dillon, 565; U. S. v. Babcock, 3 Dillon, 621; State v. Owens, 79 Mo. 619; State v. Nueslein, 25 Mo. 111; State v. Evans, 55 Mo. 460; State v. Heed, 57 Mo. 252; State v. Leeper, 78 Mo. 470. (9) The evidence wholly fails to establish any crime. (10) The record shows this to be a proceeding carried on in the name of the state to further the private interests of the prosecuting witness.

B. G. Boone, Attorney General, and W. H. Wallace for the state.

(1) The criminal court of Jackson had jurisdiction of the offence. The place of consummation of the illegal act is the seat of trial. The whole transaction in this case and every material part of it was consummated in Jackson county, Missouri. 1 Bishop C. L. sec. 486. It is apparent that the criminal court of Jackson county had jurisdiction, if we look at the case in the light of those authorities holding that where an offence is committed partly in one jurisdiction and partly in another, the one that first takes cognizance of the offence acquires jurisdiction. Desty's Crim. Law, sec. 55; 2 Wharton's C. L. 1206; Rex v. Brisac, 4 East, 164; Regina v. Leech, 36 Eng. L. & Eq. 589. Besides, the defendant actually received the money in Jackson county, Missouri. If the Traders Bank was Shaeffer's agent for the collection of the money it was also Mr. Blair's agent to pay Shaeffer. But even granting everything contended for by appellant, viz: that the money was paid to Shaeffer, or his agent in New York, the authorities by no means sustain him in his position, that, therefore, the criminal court of Jackson county, Missouri, had no jurisdiction. Norris v. State, 25 Ohio St. 217; U. S. v. Plymton, 4 Cranch, C. C. Rep. 309; Skiff v. People, 2 Parker Crim. Rep. 147; State v. Round, 82 Mo. 679; In re Carr, 28 Kan. 1; Regina v. Cook, 1 F. & F. 64; Queen v. Holmes, 12 Q. B. Div. 23; S. C., 4 Am. Crim. Reps. 591. (2) The defendant was properly convicted under Revised Statutes, section 1561. State v. Dennis, 80 Mo. 589; State v. Meyers, 82 Mo. 558. (3) The court did not err in refusing to declare the legal effect of the contract of February 4, 1884. (4) The agreement between John I. Blair and defendant, dated February 4, 1884, is not a mortgage. 1 Jones on Mortgages, secs. 265-267. The relation of creditor did not exist between them. Conway v. Alexander, 7 Cranch, 218; Holmes v. French, 9 Mo. 212; Slowey v. McMurray, 27 Mo. 113; Brant v. Robinson, 16 Mo. 129; O'Neil v. Capelle, 62 Mo. 202; McCauley v. Porter, 71 N.Y. 171. (5) Under said contract the parties were not partners. McCauley v. Cleveland, 21 Mo. 438; Whitehill v. Shields, 43 Mo. 542; Wiggins v. Graham, 51 Mo. 17; Campbell v. Dent, 54 Mo. 332; Lucas v. Cole, 57 Mo. 143; Donnell v. Harshe, 67 Mo. 170; Musser v. Brink, 68 Mo. 242; S. C., 80 Mo. 350; Haggoul v. Haggoul, 1 Story, U.S.C. E. 371; Bull v. Schuberth, 2 Md. 38; Holmes v. Railroad, 5 Gray, 58. (6) There was no error in the seventh instruction given for the state. State v. Curtis, 70 Mo. 594; State v. Hollensheit, 61 Mo. 307; State v. Carlisle, 57 Mo. 106; State v. West, 69 Mo. 40. (7) The court did not incorrectly declare the law as to reasonable doubt. U. S. v. Pettigrew, 12 Meyers' Fed. Dec., secs. 59, 3127; U. S. v. McKee, 3 Cent. Law Jour. 149. (8) The court did not err in admitting improper testimony. Besides the Supreme Court will not review errors not called to the attention of the trial court in the motion for a new trial. State v. Jansen, 80 Mo. 97; Polk v. State, 4 Mo. 544; Pogue v. State, 13 Mo. 444; State v. Marshal, 36 Mo. 400; State v. Dunn, 73 Mo. 586; State v. McCrary, 74 Mo. 303; State v. Robinson, 79 Mo. 66; State v. Mann, 83 Mo. 589. (9) The evidence in the case warranted the verdict. (10) There is no foundation for the assertion that the record shows the prosecution to be intended to further the private interests of the prosecuting witness.

Henry C. J. Norton, J., Concurring. Judge Ray concurs with Norton.

OPINION

Henry, C. J.

The defendant was indicted by the grand jury in the criminal court of Jackson county at the May term, 1885. The following are the charges:

The first count charges that the defendant obtained a large amount of money from John I. Blair under false pretenses, the false pretenses consisting of representations to Blair that he, the defendant, had arranged with the heirs of one Anthony to purchase of them for Blair their interest in a certain tract of land, lying in Jackson county, near Kansas City, and that Blair was to have the land at the lowest price at which it could be obtained, when in fact he purchased it at one...