State v. Smith

• Decision Date: 11 June 1923
• Docket Number: No. 24181.,24181.
• Citation: 252 S.W. 662
• Parties: STATE v. SMITH
• Court: Missouri Supreme Court

252 S.W. 662

STATE v. SMITH

No. 24181.

Supreme Court of Missouri, Division No. 2.

June 11, 1923.

Appeal from Circuit Court, Dunklin County; E. P. Dorris, Special Judge.

Claud Smith was convicted of obtaining money by false pretenses, and he appeals. Affirmed.

W. R. Hall and James V. Billings, both of Kennett, and E. E. Alexander, of Blytheville, Ark., for appellant.

Jesse W. Barrett, Atty. Gen., and Geo. W. Crowder, Sp. Asst. Atty. Gen., for the State.

DAVID E. BLAIR, P. J.

Defendant was found guilty of the crime of obtaining money under false pretenses. The jury fixed his punishment at imprisonment in the state penitentiary for two years. Sentence was pronounced on the verdict, and he has appealed.

The undisputed evidence is that defendant, as the agent of the American Central Insurance Company at Kennett, in Dunklin county, wrote a policy of insurance protecting the property of one Nettie Sumner against loss by fire in the sum of $1,500. Some time prior to May 6, 1921, loss to said property occurred, and such loss was adjusted by insured and a representative of the insurer in the office of defendant for an agreed sum of $1,250, and Mrs. Sumner surrendered her insurance policy. Thereafter the policy was returned to her without explanation, and she consulted defendant about the matter and expressed concern about the settlement.

On May 6, 1921, the defendant called upon Mrs. Sumner and paid her the sum of $1,000 in cash and procured her signature to various papers in settlement of the above loss, as she contends, or as a purchase of her interest in the policy, as the defendant contends. Thus far the facts are not in dispute.

The evidence offered by the state tended to prove that on the morning of May 6th defendant called Mrs. Sumner to his office and advised her that the insurance company was not satisfied with the adjustment and wanted a new inventory, and that he wanted to get it off on the 10:20 a. m. train that day. She gave this inventory, but it was not prepared in time to be mailed on said train, and defendant agreed to send it in to the insurance company by telegraph.

Some time after noon on that day defendant appeared at the residence of a Mrs. Smith, where Mrs. Sumner was staying, and. presented to her and she read what purported to be a telegram from the insurance company to defendant, stating in substance that the insurance company would pay $1,000 and no more in settlement of the loss and if this was satisfactory to draw a draft on the company, and if not to tell insured to bring suit. Defendant told Miss. Sumner that the best thing for her to do was to settle; that no insurance company was ever in a hurry to settle, and that if suit was filed, there was no telling when, if ever, she would get her money. Upon being assured by defendant that, if she accepted the preposition, he could get the money for he: as soon as he could get to the bank and wire the insurance company, Mrs. Sumner accepted the proposition. Defendant thereupon left and shortly returned and paid her $1,000 in cash by means of 50 $20 bills. He presented some receipts and papers, and Mrs. Sumner signed them without reading the same. Defendant suggested that it was unnecessary for her to read them, as she already had her money. When defendant left Mrs. Sumner, after securing her agreement to settle for $1,000, he went to the bank at Kennett and presented a draft of the American Central Insurance Company, dated May 5, 1921, payable to the order of Nettie Sumner for $1,250 and signed by Harold M. Hess, secretary. The name of Nettie Sumner purported to be signed on the back of the draft After requiring defendant to sign the draft also, the bank paid defendant $1,000 in cash and deposited $250 to the credit of defendant. This deposit was subsequently withdrawn in payment of checks issued by defendant.

The telegram which was shown to Mrs. Sumner and two other women present at the time was picked up and taken away by defendant. On the trial he failed or refused to produce such telegram upon request. When defendant was on the witness stand, he did not deny having presented a telegram to Mrs. Sumner. The agent at the telegraph office was called, probably to show that there was no record of such a telegram in his office. He apparently was not the agent in charge of the Kennett office on May 6, 1921. He was finally permitted to testify to a search, but counsel evidently became so engrossed in heated argument over the admissibility of his testimony that they forgot to get the witness to state whether he found such a telegram or not.

It also developed that Pauline Wooten had a half interest in the property destroyed by fire and covered by insurance written in the name of Nettie Sumner. Mrs. Sumner (Mrs. Mead at the date of the trial) testified in effect that she accepted the $1,000 settlement because of the representations of defendant contained in the telegram and made orally; that she believed the telegram was genuine, and relied on the representations of defendant and was induced thereby to make the settlement and to take $1,000 in settlement of the claim, which was $250 less than she was entitled to receive. Defendant thus obtained that sum of money from her.

Defendant testified as a witness. He confined his testimony to an admission that he knew, Mrs. Sumner and wrote an insurance policy for her on household goods; that fire loss occurred. He then testified that he bought her interest in the insurance policy for $1,000. He claimed Mrs. Sumner was impatient for a settlement, and that he told her if she would wait long enough she would get her money; that he did not know how long she would have to wait, as it was his first experience in collecting insurance policies but that it would be paid if she would take her time and wait for it. He testified that he offered Mrs. Sumner $1,000 for the policy the day he paid her the money and closed the deal the same day. He denied having the insurance company's draft at the time. He testified to the genuineness of Mrs. Sumner's signature on the back of the draft. She denied that she signed the draft. She denied making any "misrepresentations" to her.

I. Defendant contends that the state failed to make out a case for the jury. The main point made is that the state failed to prove that the telegram was not genuine. The evidence tends to show that defendant regained possession of the telegram presented to Mrs. Sumner after it had served its purpose. He failed to produce it on the trial upon request. Of course he did not have to produce it as evidence against himself. His failure to produce it, if there was such telegram, was for the consideration of the jury. The state failed to show by the telegraph agent that there was no record of such telegram in his office. But we think it was shown circumstantially that the telegram, was bogus. The transaction occurred May 6th. The draft and letter of transmittal were dated May 5th. The utter improbability of the insurance company sending a telegram of the character shown by the evidence on May 6th, when it had already Issued a check it payment of the loss on May 5th, was a fact for the jury to consider, and tends strongly to show the telegram was fictitious. The state's evidence tends to show the second in, ventory was made out on the forenoon of the 6th, and that defendant agreed to communicate with the insurance company by wire, and the telegram presented by him was ferentially in reply. It does not appear in evidence, but it is reasonable to assume, that; the jurors, who were familiar with train schedules, knew that the draft and letter of transmittal, mailed in St. Louis on May 5th, would be in defendant's hands on the morning of May 6th. When defendant testified, he failed to say anything about the telegram, or to deny its existence, or that Mrs. Sumner made a second inventory on the morning of May 6th.

It is contended that there is no evidence that defendant had the $1,250 draft at the time of the alleged agreement to settle for $1,000. No one testified to that fact; but all the circumstances, including the date of the draft, tend to show that defendant did have it. The short time which intervened between the making of the arrangement to settle for $1,000 and the payment of the money also indicate such prior possession of the draft. Defendant doubtless had the draft before ha procured the money to pay Mrs. Sumner. The bank cashier testified to this effect. Defendant offered no explanation showing that he got the money in any other way. The trial court did not permit the state to cross-examine defendant on the point, although it was apparently a proper subject for such cross-examination. The jury had the right from all these circumstances to find that defendant did, in fact, have the draft in his possession when the agreement to settle was made.

Appellant seems to contend that, if Mrs. Sumner did in fact indorse the draft, such fact is conclusive that she agreed to sell the policy and received her money out of it. Mrs. Sumner claimed that she signed nothing but notice and proofs of loss before the money was paid to her, and she was corroborated by two witnesses on the point. As the money was evidently procured on the draft, this evidence may be said to go to show that she did not sign the draft at all.

But if she indorsed the draft without knowing it (and she testified to signing several papers at defendant's suggestion without reading them), such fact of itself did not authorize acquittal of defendant if the jury found the existence of the other facts constituting the crime of obtaining money under false pretenses.

Our conclusion is that no error was committed in submitting the case to the jury.

II. Appellant claims that the court erred in permitting witnesses to testify concerning the contents of the insurance policy. All Mrs. Sumner testified to was that she had a policy for $1,500 in the American Central Insurance Company. The...