State v. Small

• Citation: 199 S.W. 127,272 Mo. 507
• Parties: THE STATE v. BENJAMIN W. SMALL, Appellant
• Decision Date: 04 December 1917
• Court: Missouri Supreme Court

199 S.W. 127

272 Mo. 507

THE STATE v. BENJAMIN W. SMALL, Appellant

Supreme Court of Missouri, Second Division

December 4, 1917

Appeal from Jackson Circuit Court. -- Hon. Ralph A. Latshaw, Judge.

Reversed and remanded.

Roland Hughes for appellant.

(1) The indictment nowhere charges that the defendant Small showed Lucas any statement or made to him any representation. It charges that Oldham, acting as attorney for Denham and Dobbins (not as the agent or attorney for Small), showed Lucas a statement signed by Denham and Dobbins, by which he was induced to pay, etc. It is not charged that Oldham was induced, urged, requested or was expected by defendant Small to show the statement to Lucas. The indictment does not connect in any way the defendant with the act of Oldham in showing this statement to Lucas -- the thing which it is charged induced Lucas to pay the money to May Dobbins. People v. Green, 133 P. 334. (2) The indictment is bad. (a) It does not allege that the statement exhibited to Lucas purported to contain a true and correct statement of the facts. (b) It does not allege that the statement exhibited to Lucas was false and fraudulent. (c) It does not allege that said statements were made designedly. (d) It does not allege that the statements were exhibited to Lucas by the defendant Small or through Oldham at the direction of defendant Small. (e) It does not allege that Lucas relied upon, was deceived by or was induced to part with the money by reason of any statement or representation of the defendant Small; but, on the other hand, alleges that the representations and statements which moved Lucas to part with the money were made by Oldham. The principal instruction given by the court in this case is also erroneous for the reason that it attempts to, and does, follow the indictment and warrants the jury in finding the defendant guilty, provided they should find and believe that Lucas relied upon the statements made to him by Oldham, without requiring them to find that the statements which Oldham did in fact make to Lucas were made at the instigation of the defendant and as a part of the alleged false and fraudulent scheme to obtain money by false pretenses. (3) The proof does not sustain the allegations of the indictment. (a) The indictment charges that the defendant obtained the money of the Metropolitan Street Railway Company. The proof is that Harvey and Dunham, receivers of the Street Car Company, issued their check to Oldham & Henderson. (b) The indictment charges that Lucas was attorney for the Metropolitan Street Railway Company. The proof is that in this transaction he was the attorney for the receivers, under the direction of the United States Court. (c) The indictment charges that the claim which Oldham presented was against the Metropolitan Street Railway Company. The proof is that he presented a claim against the receivers for damages done by them in operating the railroad while in their control. Jamison v. State, 37 Ark 445. "A charge of embezzlement or larceny of money is not sustained by proof of the embezzlement or larceny of a bank draft or check." State v. Mispagel, 207 Mo. 557; State v. Casselton, 255 Mo. 210; State v. Schilb, 130 Mo. 142; State v. Crosswhite, 130 Mo. 358; State v. Dodson, 72 Mo. 283; State v. Wissing, 187 Mo. 106; State v. Bacon, 170 Mo. 161; Carr v. State, 104 Ala. 43; Carter v State, 53 Ga. 326; Goodhue v. People, 94 Ill. 37; Weimer v. People, 186 Ill. 503; Hamilton v. State, 60 Ind. 153; Com. v. Weinfield, 45 Mass. 468; Com. v. Wood, 142 Mass. 459; Baker v. State, 31 Ohio 314; Block v. State, 44 Tex. 620. (4) The allegation that defendant obtained $ 500 in money from Metropolitan Street Railway Company is not sustained by proof that he received a check from Oldham & Henderson for $ 250 payable to May Dobbins, which he delivered to her. Leiske v. State, 131 S.W. 1126; same case, 60 Tex. Crim. App. 276; State v. Daniel, 83 S.C. 309; Jamison v. State, 37 Ark. 445. "The allegation of ownership of property obtained by false pretenses in an information for false pretenses is material, and must be proved as laid." Martins v. State, 8 P. 709; same case, 17 Wyo. 319; Owens v. State, 83 Wis. 496.

Frank W. McAllister, Attorney-General, and S. E. Skelley, Assistant Attorney-General, for the State.

(1) The indictment is sufficient. (a) An indictment for obtaining property by false pretenses is sufficient, if the language used sets forth the elements of the offense, designates the person charged and indicates to him the crime of which he is accused. 11 R. C. L. 857; State v. Smallwood, 68 Mo. 194; State v. Lichliter, 95 Mo. 405; State v. Donaldson, 243 Mo. 472; State v. Foley, 247 Mo. 628; State v. Young, 266 Mo. 730; State v. Loesch, 180 S.W. 878. (b) It is sufficient to allege in the indictment that the defendant, with criminal intent, designed the commission of the criminal act charged and employed an agent to carry out his purpose. Bishop's New Criminal Law (8 Ed.), secs. 310, 473; State v. Potter, 125 Mo.App. 472; State v. McCance, 110 Mo. 401; Nall v. State, 34 Ala. 262; State v. Bacon, 40 Vt. 456; Commonwealth v. Sacks, 43 L.R.A. (N.S.) 2, note. (2) The instructions, as a whole, are properly based on the facts in evidence, cover every phase of the case, correctly and fully state the law applicable thereto and are substantially correct. State v. Shout, 263 Mo. 375; State v. Young, 266 Mo. 730; State v. Loesch, 180 S.W. 878. (3) This case should not be reversed or remanded because of alleged variance between the allegations of the indictment and the proof. (a) It is not objected that there is a total failure of proof, nor could there be, as the evidence of defendant's guilt is ample to justify its submission to the jury. (b) Variance between charge and proof must be raised in and be passed on by the trial court, and cannot be raised for the first time on appeal. R. S. 1909, sec. 5114; State v. Barker, 64 Mo. 285; State v. Wammack, 70 Mo. 411; State v. Sharp, 71 Mo. 221; State v. Smith, 80 Mo. 520; State v. Ballard, 104 Mo. 637; State v. Sharp, 106 Mo. 109; State v. Harl, 137 Mo. 256; State v. Dale, 141 Mo. 288; State v. Waters, 144 Mo. 347; State v. Decker, 217 Mo. 320; State v. Starr, 244 Mo. 173; State v. Foley, 247 Mo. 634. (c) Under an indictment alleging that defendant, by false pretenses, obtained money of another, proof that he so obtained a check by means of which he accomplished his purpose, is sufficient to sustain said allegation. Bishop, New Criminal Law (8 Ed.), sec. 483; State v. Foley, 247 Mo. 634. (d) The receivers of the Metropolitan Street Railway Company were but officers of the court, appointed to take possession of and manage the property of said company, and were, in effect, mere agents. 1st. Receiver appointed by Federal Court must manage property under his custody according to valid laws of the State where such property is situated. U. S. Compiled Statutes 1913, sec. 1047; 4 Federal Statutes Annotated, p. 386. 2nd. The appointment of a receiver, in the absence of statute, does not vest him with any title to the property in controversy, but merely gives him right to possession. High on Receivers (4 Ed.), secs. 5, 134; Alderson on Receivers, secs. 196, 197; 34 Cyc. 183, 184; Rogers Hdwe. Co. v. Bldg. Co., 132 Mo. 453. 3rd. There is no statute in Missouri vesting title to property under his control in receiver. Rogers Hdwe. Co. v. Bldg. Co., 132 Mo. 453. 4th. The title and ownership of property is undisturbed by the appointment of a receiver or the possession of said property thereby. High on Receivers (4 Ed.), sec. 134; Alderson on Receivers, secs. 4, 196, 197, 198. 5th. In an indictment against a person who has wrongfully taken or procured property in the possession of a receiver, ownership thereof is properly alleged in the name of the original owner. State v. Rivers, 60 Iowa 381; State v. Coss, 12 Wash. 673. (e) Proof of obtaining, by defendant, property charged, through an agent is sufficient. Kelley's Crim. Law, sec. 23; 1 Bishop's Crim. Law, sec. 264; State v. Potter, 125 Mo.App. 472; State v. Bockstruck, 136 Mo. 350; State v. McCance, 110 Mo. 401; State v. Starr, 244 Mo. 173.

OPINION

FARIS, J.

Defendant, having been convicted in the criminal court of Jackson County, upon an indictment charging him with obtaining the sum of $ 500 by false pretenses, and having had assessed against him as punishment therefor imprisonment in the State Penitentiary for a term of four years, after the conventional motions, has appealed.

An attack has been made upon the sufficiency of the indictment in this case. It is necessary therefore to set it forth in full herein. Formal parts, signatures, and verification omitted, this indictment reads thus:

"The Grand Jurors for the State of Missouri, duly impaneled, sworn and charged to inquire, within and for the body of the county of Jackson, upon their oaths present and charge that B. W Small, Jennie L. Denham and May Dobbins, whose Christian names in full are unknown to said jurors, late of the county aforesaid, on the 12th day of April, 1915, conspiring combining and confederating together for the purpose of cheating the Metropolitan Street Railway Company, a corporation organized and existing according to law, of its money, goods, chattels and personal property, did then and there unlawfully, feloniously and designedly with the felonious intent then and there to cheat and defraud the said Metropolitan Street Railway Company, a corporation as aforesaid, of its money, goods chattels, and personal property, represent, pretend and say to one John H. Lucas, the agent, attorney and servant of the Metropolitan Street Railway Company, a corporation as aforesaid, that on the 19th day of December, 1914, the said Jennie L. Denham and ...