State v. Shout

• Decision Date: 04 January 1915
• Citation: 172 S.W. 607,263 Mo. 360
• Parties: THE STATE v. J. F. SHOUT, Appellant
• Court: Missouri Supreme Court

172 S.W. 607

263 Mo. 360

THE STATE v. J. F. SHOUT, Appellant

Supreme Court of Missouri, Second Division

January 4, 1915

Appeal from Jackson Criminal Court. -- Hon. Ralph S. Latshaw, Judge.

Affirmed.

Rufus A. Underwood and J. H. McVay for appellant.

John T Barker, Attorney-General, and W. T. Rutherford, Assistant Attorney-General, for the State.

(1) The information properly charges the offense of obtaining property by means of false pretenses and representations. State v. Roberts, 201 Mo. 710; State v Lovan, 245 Mo. 524; State v. Martin, 226 Mo 547; State v. Donaldson, 243 Mo. 465; State v. Foley, 247 Mo. 613. (2) The information charges only one offense; therefore, a verdict general in form is correct. State v. Richardson, 248 Mo. 575; State v. Martin, 230 Mo. 692; State v. Lovitt, 243 Mo. 522; State v. Bishop, 231 Mo. 415; State v. Taylor, 202 Mo. 1. (3) Admissions of a defendant are always admissible in evidence against him when freely and voluntarily made. State v. Wilkins, 221 Mo. 444; State v. Green, 220 Mo. 642; State v. Witherspoon, 231 Mo. 706; State v. Roberts, 201 Mo. 702; State v. Aitken, 240 Mo. 262. (4) Testimony by one who had examined the title records, that they did not show certain things, is competent. State v. Roberts, 201 Mo. 702; State v. Dines, 206 Mo. 649. (5) Unless the objection to the admission of evidence is specific, its admission cannot be urged as error on appeal. State v. Kanupka, 247 Mo. 714; State v. Wooley, 215 Mo. 620; State v. Wilson, 223 Mo. 170; State v. Wilson, 225 Mo. 516; State v. Witherspoon, 231 Mo. 720. (6) A statement made by one conspirator concerning the connection of his co-conspirator with the crime, made after its consummation, is competent as to him, and if no objection is made as to its competency as to his co-conspirator, the two being tried jointly, and no request is made that it be limited to the conspirator making it, its admission cannot be reviewed on the appeal of the co-conspirator. State v. Aitken, 240 Mo. 262; State v. Copeman, 186 Mo. 108; State v. Gow, 235 Mo. 307; State v. Casto, 231 Mo. 408. (7) A conspiracy to commit a crime may be shown by facts and circumstances from which a conspiracy may be inferred. State v. Sykes, 191 Mo. 62; State v. Darling, 199 Mo. 168; State v. Roberts, 201 Mo. 702; State v. Casto, 231 Mo. 398; State v. Fields, 234 Mo. 615. (8) One proper instruction on the presumption of innocence and one instruction requiring the jury to find the defendant guilty beyond a reasonable doubt is sufficient. State v. Baker, 136 Mo. 80; State v. Fannon, 158 Mo. 156; State v. Gow, 235 Mo. 328. (9) It is only when the State relies upon circumstantial evidence alone that an instruction on circumstantial evidence should be given. State v. Dannelly, 130 Mo. 649; State v. Crane, 209 Mo. 316; State v. Bobbitt, 215 Mo. 10; State v. Hubbard, 223 Mo. 80. (10) Certified copies of instruments of record in Dent county affecting the title to the land in evidence were properly admitted in evidence. Sec. 6310, R. S. 1909; Frank v. Renter, 116 Mo. 517; Baum v. Sauer, 117 Mo. 460.

WALKER, P. J. Brown and Faris, JJ., concur.

OPINION

WALKER, P. J.

The appellant and one W. J. Voss were charged in an information filed in the criminal court of Jackson county with obtaining from one G. F. Vogel certain personal property by means of false statements and fraudulent pretenses and representations under section 4565, Revised Statutes 1909. Upon a joint trial both defendants were convicted and each sentenced to two years' imprisonment in the penitentiary. The appellant, after an unsuccessful attempt to secure a new trial, appealed to this court, gave a bail bond which was approved, and a supersedeas was granted pending the review of the case here.

Vogel, the prosecuting witness, a machinist, lived in Kansas City, Missouri, and owned an automobile, a motorcycle and the furnishings for a shooting gallery. He was desirous of disposing of this property. In a real estate dealer's office in Kansas City he met Voss, one of the defendants. The latter invited Vogel to come to his (Voss's) office in another building, and upon his doing so some trades were proposed which were not consummated. A week later Voss came to Vogel's home and proposed to trade the latter eighty acres of land in Dent county, Missouri, for the personal property before mentioned. Voss said he lived in Dent county, knew the land and that it was good; that it was owned by a wealthy old German who had a good title to it. That night Voss returned to Vogel's home bringing with him what purported to be an abstract of title to the land made by one J. W. Walmsley for the Dent County Abstract Company, and delivered it to Vogel, saying it was genuine and showed a true chain of title from the United States to J. F. Shout, the appellant, who it was stated was then the owner. Vogel consented to the trade, and the next night Voss delivered a deed to him for eighty acres of land therein described as located in Dent county, the grantors being J. F. Shout, the appellant, and his wife. A month later Vogel discovered that the Dent County Abstract Company and J. W. Walmsley were myths and that no such company or individual ever had been or were in Dent county, and that the abstract did not give a correct chain of title to the land in question and was otherwise not genuine, and that appellant had no title to the land. Vogel complained to the appellant, who insisted that he had the title to the land, but that there were taxes on the land which had not been paid. In a subsequent interview with appellant and the defendant Voss, upon being charged with defrauding Vogel, they requested authority to sell the land, saying that they had straightened up other like deals in this manner and they would straighten up this one. The deal was, as stated, made by Voss with Vogel who did not meet the appellant until after he discovered that the transaction was fraudulent. The ludicrous irony of the transaction is disclosed when it is shown that Voss, who was the promoter of the fraud, was paid twenty-five dollars by Vogel for effecting the trade.

There was no foundation in fact for the statements made by Voss to influence the actions of Vogel. The land described in the deed from the appellant to Vogel, at the time of the trade, was owned and in the possession on one G. S. Clark, who, supplementing the documentary evidence as to his title, stated that he owned the land and had been in actual possession of it continuously since 1907, and that he had not sold or transferred same. Clark's testimony was corroborated by that of the recorder of Dent county and the owner of the abstracts of titles at Salem, the county seat.

Appellant testified that he never met Vogel or Voss until after the trade in question was made. That he got the land from an old man by the name of Allendorph living in Kansas City, and identified an abstract of title which he stated he had received from Allendorph at that time.

That he placed the land and abstract in the hands of a Mr. Cadien for sale. That the latter had died in August before the trial. That he had never seen the land in question. That he told his agent to have the abstract brought down to date and then deliver it to the "other agent." That he executed the deed, leaving the grantee's name blank, and delivered it to his agent Cadien and did not see the personal property he had traded for until his agent had procured a bill of sale of it.

On cross-examination he said that he got three copies of the abstract from Allendorph. That the abstracts he had were certified, one by J. W. Walmsley and the other by J. W. Steel, and both for the same land and both alike except as to the names of the parties signing the certificates. He did not know Steel or Walmsley and had never tried to find out anything about them. That he valued the land at $ 800, and traded it for the automobile, motorcycle and shooting gallery, which articles he afterwards traded off, getting ten acres of land in Florida that he had never seen.

William J. Voss, co-defendant, testified that the first time he ever saw the prosecuting witness was in a Mr. Clay's office in the Century Building, Kansas City. He did not speak to him on that occasion, and about one and one-half hours later Vogel came into his office in the Ridge building and listed the automobiles, etc., with him for trade and a few days later he met Mr. Cadien and mentioned to him that he had these articles for trade and Mr. Cadien submitted the land in question to him for exchange for the automobile. A few days later he saw Vogel and submitted the proposition of trading for this land to him. Vogel authorized him to trade for the land if it was clear. Ten days later he received an abstract of title to the land from Cadien and handed it to Vogel, telling him to have it examined by an attorney; that he did not know anything about the title and that it was up to him to find out what he had. He denied all statements testified to by Vogel as to the value of the land, his acquaintance with it and all knowledge of the supposed owner. Two days after receiving the abstract Vogel came to his office and they together went to Mr. Cadien's office and Vogel made out a bill of sale covering the automobile, etc. That he had met Shout, the appellant, for the first time the day before, when he took him to look at the automobile and other property. That he did not have any interest in the land or other property involved in the trade; that he made no statements about the value of the land, the abstract, the title, the deed, or the owner, because he knew nothing about them.

I. It is contended that the information is defective. It avers in substance that the defendants contriving, designing and...