State v. Sherrill

• Decision Date: 22 December 1925
• Docket Number: 26464
• Citation: 278 S.W. 992
• Parties: STATE v. SHERRILL
• Court: Missouri Supreme Court

278 S.W. 992

STATE v. SHERRILL

No. 26464

Supreme Court of Missouri, Second Division

December 22, 1925

J. S Tall and Whiteside & Gutting, all of Kahoka, for appellant.

Robert W. Otto, Atty. Gen., and James A. Potter, Sp. Asst. Atty Gen., for the State.

OPINION

HIGBEE, C.

The appellant was charged by information with having cheated and defrauded J. C. Johnson by falsely representing that appellant was the agent of the Akron Tire Company, of Akron Ohio, engaged in manufacturing and selling automobile tires and inner tubes, and that he (Sherrill) was entitled to receive $ 20.70 from said Johnson in payment of an automobile tire and inner tube, and thereby Johnson was induced to and did pay said sum of money, etc. On a second trial in April, 1924, defendant was found guilty and sentenced to the penitentiary for 2 years, and appealed. We set out a summary of the evidence and the substance of the indictment.

J. C. Johnson testified:

'I bought a tire and inner tube last May from the defendant. He came to my farm. He had a sample of cord tire; said he was representing Akron Tire Company, of Akron, Ohio; was their agent; said they made good tires. He said the money goes to the house, and you get a duplicate. Next day he called me on the phone; said he would take 50 cents off. I thought I was safe when he said to make a check to the house and they would send me a duplicate. We were good friends; had traded with him before. He phoned and asked what I was going to do about the tire. I told him I would take the tire, and he drove down. The inner tube was $ 3 and the tire $ 17.87. I gave this check for $ 20.87. (Here the check was read in evidence) I gave this check to Sherrill. I next saw the check at the Farmers' Trust Company, in Kahoka. It has been paid out of my funds in that bank. I parted with that check because I bought a tire and inner tube from him. He said he would send it to the house and I would get a duplicate from the house, and he would hand me back 50 cents when he got his return. He said the company would send the tire in 3 or 4 days from Akron, Ohio; that it would be delivered.

'Q. Did you get the tire? (Objected to by the defendant.) A. No, sir. I got nothing from the proceeds of this check. After Sherrill cashed the check, he told me he got a bank draft at La Plata and sent it to the company. Several times he offered me another tire and tube. I never received it. All I got was promises. I fooled around with him 3 or 4 months. He told me he was the agent for the company. I thought I was doing business with the Akron Tire Company.

'Q. You didn't rely on anything he said? A. As far as agent.

'Q. You didn't have any confidence in him? A. As much as I ever did.

'Q. Didn't you swear in the case before that you didn't rely on him? A. I didn't have any use for him.

'Q. You said you wouldn't believe anything he said? A. I said I didn't have any use for him. I made the check payable to the Akron Tire Company. He wrote the check himself.

'Q. On the trial of this case before didn't you swear you wouldn't believe anything he said? A. I said I didn't have any use for him. I don't remember what I said, but that is what I meant. I relied on all the statements he made me.

'Q. Didn't you testify on the trial of the case before that you didn't rely on his statements? A. I don't remember. I might have. I won't say whether I did or didn't. All the business transactions I had with Sherrill were entirely satisfactory outside of this transaction.'

O. S. Calvert testified:

'I was at Johnson's place in May, 1923, when Sherrill came to sell Johnson a tire. He had a sample with him. He said he represented the Akron Tire Company, of Akron, Ohio; that he took orders and sent them in with the check. There was to be an inner tube. I don't think Johnson gave an order that day. They made no deal in my presence.'

Fred Isley:

'I was cashier of Farmers' Bank of Medill in May, 1923. I saw the check, Exhibit A, May 28, 1923. Sherrill had it in the bank, and asked to have it cashed. I asked him how he came to have it to the Akron Tire Company, and he said, 'I am doing business under that name and style at Kahoka' I asked him why he didn't have it cashed at Kahoka. He said he wanted to catch 119 on the Santa Fe. I took his word for it. It was cleared through the Exchange Bank, at Kahoka. The check went through. We got credit for it.'

J. L. Arndt testified:

'I live at Hurdland, Knox County, about 40 miles from Kahoka. The defendant was in my office in May, 1923. I ordered a tire from him, a cord tire 31x4; said he represented the Akron Tire Company. I gave him an order for a tire at $ 9. I was to get a prompt shipment, and I paid him for the tire on May 7. I waited and waited. He finally wrote me they were behind with their orders and to be patient. I waited another month and got no reply, and so I got the check and saw the indorsement in his own handwriting, and I wrote the sheriff to find out what about it, and he was kind enough to get my money for me.'

Fred P. Lang, secretary and treasurer of the Farmers' Trust Company, of Kahoka, in May, 1923, testified:

'This check, Exhibit A, was paid by us and charged to the account of J. C. Johnson. Johnson lives 2 miles east of Kahoka. The bank of Medill is 3 miles west of Kahoka.'

Louis Johnson testified:

'I live in Kahoka, and am county collector; was fairly well acquainted with the business firms in Kahoka, in May, 1923. I issue merchants' licenses. I never heard of the Akron Tire Company, of Kahoka.'

Other men engaged in business in Kahoka gave like testimony.

We quote from the state's summary of the evidence for the defendant:

'Charles Neumann testified for the appellant as follows: That he lived at Winchester; that he was on the jury which tried the appellant at a former term, and heard the testimony of J. C. Johnson, the prosecuting witness; that Johnson then testified that he did not believe appellant, and had no confidence in him, and that he didn't rely on what appellant said. I think he said he didn't rely on any statement appellant made.

'Madeline Pettingill testified that she was the court stenographer at the time of appellant's former trial, and had the notes of the testimony taken thereat; that the notes showed J. C. Johnson testified as follows: 'You had perfect confidence in what Sherrill said? A. No, sir. Q. You didn't at the time? A. No, sir. Q. You wouldn't have trusted him? A. I trusted the company. Q. You didn't have any more confidence in Sherrill at that time than you have now? A. No, sir. Q. You didn't rely on what he would tell you? A. No, sir; you never could.' ''.

The second amended information, based on section 3343, R. S 1919, charges, in substance, that on or about May 28, 1923, at Clark county, Mo., L. R. Sherrill did then and there feloniously and designedly with felonious intent to cheat and defraud one J. C. Johnson. did then and there unlawfully, knowingly, and feloniously and falsely fraudulently represent state, and pretend to the said J. C. Johnson that the said L. R. Sherrill was then and there the due and lawful agent of the Akron Tire Company, of Akron, Ohio, and then and there engaged in the making, manufacture, and selling automobile tires and automobile inner tubes, and that the said L. R. Sherrill was the true and lawful agent of the said Akron Tire Company, and the said L. R. Sherrill so falsely and fraudulently represented as aforesaid that he, the said L. R. Sherrill, was then and there entitled to have and receive for the said Akron Tire Company $ 20.87 from the said J. C. Johnson, in payment of an automobile tire and automobile inner tube, belonging to the said Akron Tire Company, and that the said J. C. Johnson, believing said false and fraudulent representations, statements, and pretenses so made as aforesaid by the said L. R. Sherrill to be true, and being deceived thereby, was induced by reason thereof to then and there pay, and did pay, to said L. R. Sherrill the said sum of $ 20.87, and that the said ...