State v. Starr

• Decision Date: 20 June 1912
• Parties: THE STATE v. JOHN A. STARR, Appellant
• Court: Missouri Supreme Court

148 S.W. 862

244 Mo. 161

THE STATE v. JOHN A. STARR, Appellant

Supreme Court of Missouri, Second Division

June 20, 1912

Appeal from Ray Circuit Court. -- Hon. Francis H. Trimble, Judge.

Affirmed.

Frank P. Divelbiss and James L. Farris for appellant.

(1) The indictment should have been quashed, because it appears from the face thereof that the alleged false pretenses were so absurd and irrational that no one had a right to rely thereon. State v. Cameron, 117 Mo. 641; State v Barbee, 136 Mo. 440; State v. Lawrence, 178 Mo 350; State v. Keyes, 196 Mo. 136; Buckaleu v State, 11 Tex.App. 352; Com. v. Drew, 19 Pick. 17; Com. v. Norton, 11 Allen 266; People v. Crissie, 4 Den. (N.Y.) 525. (2) The demurrer should have been sustained because the evidence clearly showed that the prosecuting witness had at hand, at the very time, the means of detecting the falsity of the alleged pretenses. State v. Keyes, 196 Mo. 136; Com. v. Drew, 19 Pick. 17; Com. v. Norton, 11 Allen 266; People v. Crissie, 4 Den. (N.Y.) 525; State v. Buckaleu, 11 Tex.App. 352; State v. Young, 76 N.C. 258. (3) The demurrer should have also been sustained because, according to the testimony of the State, the defendant could in no event have been guilty of obtaining money under false pretenses, but if guilty of any thing, was guilty of a totally different offense. 2 Bishop's New Criminal Law, 813; State v. Kosky, 191 Mo. 1; People v. DeGroff, 60 P. 429; People v. Delbos, 81 P. 131; Harris v. State, 81 Ga. 758; Smith v. People, 53 N.Y. 111; Com. v. Lannan, 26 N.E. 858; Crum. v. State, 47 N.E. 833; Towns v. State, 78 N.E. 1012; Welsh v. People, 17 Ill. 339; Stinson v. People, 43 Ill. 397. (4) The demurrer to the evidence should have been sustained because there was no proof as to the ownership of the property alleged to have been received by defendant. The record shows, that it was received at the hands of Robinson, but it is silent as to its ownership. The mere possession by the prosecuting witness would, in a civil proceeding, be prima facie evidence of ownership, but, in a criminal trial, such prima facie evidence is not sufficient to overcome the presumption of innocence, which attends defendant throughout the trial. State v. James, 133 Mo.App. 300; State v. Roswell, 153 Mo. 338; State v. Shelly, 166 Mo. 616. The indictment having alleged that the money obtained from the prosecuting witness was lawful money of the United States the State was bound to prove that fact. This was not done and the demurrer for that reason also should have been sustained. 1 Bishop's New Criminal Proc., 485, 486 and 488; Hamilton v. State, 60 Ind. 193; Lewis v. State, 113 Ind. 59; Williams v. People, 101 Ill. 382; Vale v. People, 161 Ill. 309; Wilburn v. State, 60 Ark. 141; Marshall v. State, 71 Ark. 415; Childers v. State, 16 Tex.App. 524; Coffelt v. State, 27 Tex.App. 608; Early v. State, 56 Tex. Cr. 61; Snelling v. State, 57 Tex. Cr. 416; State v. Phillips, 27 Wash. 364; State v. Smith, 31 Mo. 120; State v. Samuels, 144 Mo. 68; State v. Shapiro, 216 Mo. 359; State v. Roswell, 153 Mo.App. 338. (6) Instruction 2 was also erroneous because it assumed that the prosecuting witness parted not only with the possession but also with the title to the money. The court should have submitted to the jury the question of Robinson's intention as to passing the title as well as possession. Loomis v. People, 67 N.Y. 322; Smith v. People, 53 N.Y. 111; Kellog v. State, 26 Oh. St. 15; Taylor v. State, 32 Tex. Crim. 110; Wilson v. State, 1 Porter (Ala.), 118. (7) Instruction 2 is also erroneous in that it fails to require the jury to find the fraudulent purpose for which defendant made the alleged false pretenses. State v. Keyes, 196 Mo. 136. (8) Instruction 2 only required the jury to find defendant falsely represented that suit had been filed. This standing by itself was insufficient. (9) Whether the alleged pretenses were calculated to deceive the prosecuting witness should have been submitted to the jury; especially since the State tendered that issue by alleging in the indictment that said pretenses, "were calculated and intended to deceive Silas C. Robinson." So, also, should the question have been submitted to the jury as to whether Robinson had at hand, at the time, the means of detecting the falsity of the alleged pretenses. Com. v. Beckett, 119 Ky. 817; Miller v. State, 79 Ind. 198; Waggoner v. State, 90 Ind. 504; Shaffer v. State, 100 Ind. 365; State v. Burnett, 119 Ind. 392; People v. Dimick, 107 N.Y. 13; Cowan v. People, 14 Ill. 350; State v. Switzer, 63 Ver. 604; State v. Vandimark, 35 Ark. 396; State v. Lynn, 51 A. 882; State v. Briscoe, 67 A. 154; Jackson v. People, 126 Ill. 139; Com. v. Drew, 19 Pick. 179; 2 Bish. New. Cr. Law, 239, 415; 1 McClain, Cr. Law, 666. (10) Instruction 4 is misleading and in effect tells the jury that there is sufficient evidence in the case from which they may infer the guilty intent of the defendant. It should also have further required the jury to find that the facts and circumstances tending to prove such intent must be sufficient to satisfy the jury of such intent beyond a reasonable doubt. State v. Keyes, 196 Mo. 146. (11) Instruction 7 is erroneous because there was no evidence upon which to base the same and for the further reason that it does not properly define corroboration. State v. Chyo Chiagk, 92 Mo. 395; State v. Spraig, 149 Mo. 425; State v. McClain, 159 Mo. 340; State v. Hunter, 181 Mo. 316. (12) Instruction 9 is erroneous because it authorizes a conviction if the prosecuting witness was simply "induced" to pay the money to the defendant. (13) Instruction 12 is correct so far as it goes, but is erroneous in that it fails to tell the jury what is a material fact, but leaves the jury to grope in the dark and determine for itself what are the material facts in a trial for obtaining money under false pretenses. State v. Williams, 30 Mo. 364; State v. Fannin, 158 Mo. 149; State v. Faulkner, 175 Mo. 546. (14) Evidence as to defendant's reputation for morality should have been confined to a period prior to the date of the alleged offense for which he was on trial. State v. Marks, 16 Utah 204; People v. Brewer, 27 Mich. 134; State v. Kinley, 43 Ia. 294; Wroe v. State, 20 Ohio St. 461; Wharton Crim. Ev. 62, 63. (15) The evidence as to the defendant's conviction of a misdemeanor fourteen years prior to the date of this trial was too remote and should have been excluded. State v. Parker, 96 Mo. 390 State v. Gesell, 124 Mo. 535; Guardian v. King, 98 Ky. 253; Baker v. Com., 106 Ky. 212; People v. Gotschall, 123 Mich. 474; Gardner v. State, 117 S.W. 148. (16) Having erroneously permitted to go to the jury the evidence as to defendant's conviction of a misdemeanor in 1897, the court committed further error by refusing to instruct the jury that that fact could be considered only for the purpose of affecting his credibility. Mahony v. State, 33 Tex. Cr. 388; Wilson v. State, 76 S.W. (Tex. Cr.) 434; Ochsner v. Comm. 128 Ky. 76; Herron v. People, 62 P. 835. (17) The court likewise committed error in refusing to instruct the jury that they should consider the testimony introduced as to defendant's general reputation for morality for the purpose of affecting his credibility only. State v. Broderick, 61 Ver. 420; Williams v. State, 25 Tex.App. 76; Webb v. State, 47 Tex. Cr. 305; Ashcraft v. Comm., 68 S.W. 1847; Ritter v. People, 22 N.E. 605; State v. Wellington, 23 P. 156.

Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State; Maurice G. Roberts of counsel.

(1) The false pretenses were not so absurd and irrational that Robinson had no right to rely thereon. State v Martin, 226 Mo. 539; State v. Keyes, 196 Mo. 136; State v. Hill, 72 Me. 238; Thomas v. People, 113 Ill. 531; State v. Munday, 78 N.C. 460; Watson v. People, 87 N.Y. 566. The indictment sufficiently charges that all the facts were feloniously done. State v. Wilson, 223 Mo. 159; State v. Ferguson, 162 Mo. 668. (2) The evidence did not show the prosecuting witness had the means at hand at the very time of detecting the falsity of the alleged pretenses. State v. Keyes, 196 Mo. 157; Thomas v. Phillips, 112 Ill. 531; State v. McConky, 49 Iowa 499; State v. Hill, 72 Me. 238. (3) The defendant was not guilty of larceny but of false pretenses, because Robinson intended to part with the ownership as well as the possession of the money. 25 Cyc. 33; 19 Cyc. 408; State v. Kosky, 191 Mo. 1. (4) Ample testimony was introduced to show that Robinson was the owner of the money. Defendant admitted ownership by returning the money to Robinson. 12 Am. & Eng. Ency. Law 828; 19 Cyc. 466; Britt v. State, 9 Humph. (Tenn.) 42; Barton v. People, 135 Ill. 405; Mack v. State, 63 Ala. 138; 8 Ency. Pl. & Prac., 878, note 3. (5) Possession is sufficient evidence of ownership in criminal prosecutions for larceny, false pretense or robbery. The decision of the St. Louis Court of Appeals in State v. James, 133 Mo.App. 300, to the contrary is disapproved by text writers and all the higher courts of other States where the matter has been adjudicated. 4 Wig. on Ev., sec. 2515; People v. Oldham, 111 Cal. 648; State v. Howard, 77 P. 54; Howard v. People, 193 Ill. 615; Blanchette v. Com., 32 N.E. 658; Griffith v. State, 72 N.E. 563; State v. Patton, 41 A. 193; Carl v. State, 28 So. 505; Adkins v. State, 41 S.E. 987; Taylor v. State, 75 S.W. 35; Cook v. State, 97 S.W. 683; Barnes v. People, 18 Ill. 52; State v. Donovan, 121 Mo. 496; Ledbetter v. State, 29 S.W. 1084; 1 Greenleaf on Ev. (15 Ed.), sec. 34; State v. Hobgood, 15 So. 406; Weeks v. Etter, 81 Mo. 375; Comm. Co. v. Railroad, 87 Mo.App. 330; Miller v. Marks, 20 Mo.App. 369. (6) In an indictment for obtaining money under false pretenses it is...