State v. Starr

Decision Date01 June 1912
Citation148 S.W. 862
PartiesSTATE v. STARR.
CourtMissouri Supreme Court

Appeal from Circuit Court, Ray County; F. H. Trimble, Judge.

John A. Starr was convicted of obtaining money by false pretenses, and he appeals. Affirmed.

Defendant, James McPhetridge, and Alice Scheffler were jointly indicted in the Ray county circuit court for obtaining money by false pretenses from one Silas Robinson. At the February term, 1911, of said court, a severance having been granted defendant, he was placed on trial upon the first count of said indictment, found guilty, and sentenced to two years in the penitentiary. It appears from the evidence that the defendant, his coindictees, and Silas Robinson, the party victimized, lived in the town of Hardin, Ray county. Defendant was a druggist, McPhetridge, a lawyer, Alice Scheffler, the wife of one Barney Scheffler, and Robinson, a wealthy farmer, about 78 years of age.

The evidence for the state tends to show that the three defendants in the indictment entered into a conspiracy and agreement to obtain money from Robinson by falsely representing to him that he had been sued by the husband of Alice Scheffler for alienating his wife's affections, and inducing Robinson to pay money in order to effect a settlement of said alleged suit. Pursuant to this conspiracy, on the 31st day of December, 1909, defendant Starr called Robinson into his drug store, took from his pocket a paper which he represented to Robinson was a copy of the petition in such alienation suit, and read what purported to be the contents thereof to the effect that a suit for $30,000 damages had been brought by Barney Scheffler in the Ray county circuit court against Robinson. He then advised Robinson to compromise said suit, and said that he could have it compromised for $5,000. After some parleying, Robinson agreed to give $3,000 for that purpose. On that evening, it being Saturday, Robinson drew his check for $3,000, and same was given to McPhetridge to hold until the following Monday morning, at which time Robinson drew $2,000 in cash from a Hardin bank, which money was paid over to McPhetridge, together with a check for $1,000, the latter to be held until the remaining cash could be procured, and the $3,-000 check was surrendered. On Monday evening Robinson went to the office of McPhetridge with the remaining $1,000, met Mrs. Scheffler there, got from McPhetridge the $2,000 which had been given him that morning, and counted out the entire $3,000, which he handed to Mrs. Scheffler. Robinson then destroyed the $1,000 check. Subsequently this $3,000 was equally divided between Starr, McPhetridge, and Alice Scheffler. When the money was paid over, McPhetridge drew up an affidavit which was signed by the woman and turned over to Robinson. This affidavit was to the effect that there had been no improper relations between Robinson and Mrs. Scheffler. Subsequently defendant Starr admitted to two witnesses for the state that he had induced Robinson to part with his money in the manner related, claiming that the paper which he had exhibited to Robinson was represented by McPhetridge to him to be a copy of a petition. As a matter of fact no suit had been filed against Robinson for alienation. There had been a suit filed by Scheffler against his wife for divorce, and in that suit depositions had been taken connecting her name with Robinson. The evidence shows that there had been improper relations between Robinson and Mrs. Scheffler. The defendant testified that he acted in good faith throughout the matter, that he believed that a suit had been brought as he had represented to Robinson, and that he was trying to do Robinson a favor. The state entered a nol. pros. as to McPhetridge, and defendant Starr was alone placed on trial. Immediately after the payment of the money as above detailed, McPhetridge left the state because of this transaction. He testified for the state at the trial, denied that he had represented to Starr that this paper shown to Robinson was a copy of any petition, and stated that he did not tell Starr that an alienation suit was pending against Robinson, but that he did give Starr a memorandum containing the substance of some depositions taken in the divorce suit. The defendant, testifying as a witness in his own behalf, admitted on cross-examination that he had been convicted of selling liquor without a license several years ago. Several witnesses also testified for the state that Starr's reputation for morality was bad.

Defendant has filed 22 assignments of error. Space will not permit a discussion of all of them, and we will consider only such as we deem material.

F. P. Divelbiss and J. L. Farris, for appellant. Elliott W. Major, Atty. Gen., and John M. Dawson, Asst. Atty. Gen., for the State.

FERRISS, J. (after stating the facts as above).

1. It is urged that the indictment is insufficient, and also that the demurrer to the state's evidence should have been sustained, upon the grounds that the representations charged in the indictment were absurd or irrational, and that Robinson had at the very time the means at hand of detecting their falsity. Whether the representations made by defendant were absurd or irrational depends upon two things. One is the character of the representations themselves, and the other is the situation and capacity of the victim. The real question is whether, under all the circumstances of the case, Robinson had reasonable grounds from his point of view to believe the representations and to act upon them. He was 78 years old, a retired farmer. He had been guilty of criminal intimacy with Mrs. Scheffler. He had unbounded confidence in Starr, with whom he had been more or less intimate for 30 years. The statement that Scheffler had brought suit against him for alienation was one quite likely to be true. That Starr should have a copy of the petition would not to him seem at all unlikely. No reason would appear to him why Starr should attempt to deceive him in the matter, or was engaged in an effort to swindle...

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41 cases
  • State v. Hepperman, 37944.
    • United States
    • Missouri Supreme Court
    • June 17, 1942
    ...the law in the case and erred in refusing Instruction K offered by defendant. State v. Salmon, 115 S.W. 1106, 216 Mo. 466; State v. Starr, 148 S.W. 862; State v. Majors, 237 S.W. 486; State v. Cantrell, 234 S.W. 800. (6) The court erred in refusing to give Instruction G offered by defendant......
  • State v. Denison, 38862.
    • United States
    • Missouri Supreme Court
    • March 6, 1944
    ...instructions whether they are requested or not. State v. Branstetter, 65 Mo. 149; State v. McBroom, 141 S.W. 1120; State v. Starr, 148 S.W. 862; State v. Weinberg, 150 S.W. 1069, 245 Mo. 546. (9) An assignment in motion for new trial that the court erred in failing to instruct the jury upon......
  • State v. Park
    • United States
    • Missouri Supreme Court
    • March 2, 1929
    ...The court was not required to prepare them for appellant upon mere request. [State v. Simon (Mo. Sup.), 295 S.W. 1076; State v. Starr, 244 Mo. 161, 148 S.W. 862, and cases Besides, an instruction on the testimony of an accomplice was not proper in this case. Appellant was tried for and conv......
  • State v. Chaney
    • United States
    • Missouri Supreme Court
    • September 11, 1961
    ...or tender instructions of that class, save exceptions and preserve the point in his motion for new trial.' See also State v. Starr, 244 Mo. 161, 182, 148 S.W. 862, construing these statutes. 'Collateral' means 'collateral to the main issue,' State v. English, 308 Mo. 695, 274 S.W. 470, 474.......
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