State v. Smalley

• Decision Date: 11 June 1923
• Docket Number: No. 24140.,24140.
• Citation: 252 S.W. 443
• Parties: STATE v. SMALLEY.
• Court: Missouri Supreme Court

252 S.W. 443

STATE v. SMALLEY.

No. 24140.

Supreme Court of Missouri, Division No. 2.

June 11, 1923.

Appeal from Circuit Court, Jackson County; Ralph S. Latshaw, Judge.

A. F. Smalley was convicted of obtaining money under false pretenses, and he appeals. Reversed and remanded.

Garrett & Sheppard, of Kansas City, for appellant.

Jesse W. Barrett, Atty. Gen., and Henry Davis, Asst. Atty. Gen., for the State.

WALKER, J.

Appellant was charged by information in the circuit court of Jackson county with obtaining money under false pretenses. Upon a trial he was found guilty and his punishment assessed at two years in the penitentiary. From this judgment he appeals.

P. R. Marshall was jointly indicted with the appellant, but a severance was granted upon the application of the latter, and subsequently the case against Marshall was dismissed and he testified for the prosecution in the action against the appellant.

The information in substance charges that A. E. Smalley and P. R. Marshall on the 1st of December, 1920, conspired and combined together for the purpose of cheating and defrauding one Harry E. Richards of his money; that for this purpose they applied to said Richards and requested him to purchase of and from them a one-twentieth interest in a business in Kansas City, known as the Central Plating Works, a copartnership; that for the purpose of furthering their design to cheat and defraud the said Richards, the said Marshall and Smalley made certain false and fraudulent representations to Richards. The information, after formally setting out the false representations made to Richards, alleged in effect:

"That the said Richards believing the false and fraudulent statements, representations and pretenses instigated by the appellant and communicated to the said Richards by the said Marshall to be true, and relying thereon and being deceived thereby, was induced by reason thereof to pay and deliver to the said Marshall and Smalley $200 lawful money of the United States, etc., of the moneys and personal property of the said Richards.

"And the said Smalley and Marshall by means and by use of the false and fraudulent statements and pretenses so communicated as aforesaid to the said Richards by the said Marshall and at the instigation of the said Smalley, did unlawfully, feloniously and designedly, with the felonious intent then and there to cheat and defraud him, the said Richards, obtain of and from the said Richards $200 lawful money of the United States, of the value of $200, the moneys, chattels and personal property of the said Richards for and in exchange for a one-twentieth interest in said Central Plating Works as aforesaid."

Under the foregoing charge the court admitted evidence of the acts and statements of Marshall made in the absence of the appellant upon the assurance of the prosecution that the state would prove that a conspiracy existed.

Upon this issue, Marshall testified for the state that he was acting in good faith throughout the matter; that he believed upon the information given to him by the appellant that the statements he made were true and did not know that there was anything wrong until after all of the interests had been sold.

The evidence shows that Richards purchased a one-twentieth interest in the Central Plating Works, which was a partnership; that he paid his money to the partnership.

The contract evidencing the purchase of the Interest is In words and figures as follows:

"The contract made and entered into this 7th day of January, 1921, by and between P. R. Marshall of the Central Plating Works, a partnership, a plating plant located at 1208 Holmes street, Kansas City, Jackson county, Mo., party of the first part, and Mr. Harry E. Richards of Kansas City, Mo., party of the second part.

"The Central Plating Works, party of the first part, does hereby agree to sell and transfer a two-hundredth's interest in the Central Plating Works, located at 1206 Holmes street, Kansas City, Mo., to Mr. Harry E. Richards, of Kansas City, Mo., party of the second part, for and in consideration of $200.00 to be used in no other way than the purchase of necessary equipment for plating or the furthering of the interests of the plating plant. It is represented as a part of the consideration of this contract that the Central Plating Works is free from debts of any nature whatsoever.

"It is further understood and agreed between said parties that said second party, Harry E. Richards, of Kansas City, Mo., shall be given employment with the Central Plating Works as polisher or in whatever capacity needed, at a flat salary of $150.00 per month, and the second party will diligently apply himself and will faithfully work for the advancement and interests of the Central Plating Works; and it is further understood and agreed by and between the first and second parties that should said second party fail through negligence to make a suitable return the first party reserves the right to refund any and all money paid to party of the first part said amount to be determined by the net worth of the entire business to be prorated on a basis of ten thousand ($10,00000) dollars, total capital, at the time of said disagreement, said refund to be based as above in event of either profit or loss, and party of the second part will release any and all claims of interest that he may hold and discontinue his employment with party of the first part.

"In witness whereof, the said parties have subscribed their names to the above and foregoing contract, executed in duplicate at Kansas City, Mo., the day and year first above written." Signed, Central Plating Works, by P. R. Marshall, Business Manager, and Harry E. Richards, and acknowledged before a notary public.

The check given by Richards in payment of the interest was made payable to the partnership, the Central Plating Works. It bore the indorsement of the Central Plating Works, by P. R. Marshall. The evidence shows that the cash derived from the payment of this check went into the partnership. It was the contention of the state as charged in...