State v. Steele

• Decision Date: 15 March 1910
• Citation: 226 Mo. 583,126 S.W. 406
• Parties: STATE v. STEELE.
• Court: Missouri Supreme Court

126 S.W. 406

226 Mo. 583

STATE v. STEELE.

Supreme Court of Missouri. Division No. 2.

March 15, 1910.

1. FALSE PRETENSES (§ 29) — SUFFICIENCY OF INFORMATION.

An information for obtaining property under false pretenses by inducing the prosecutor to exchange her household goods for a note secured by a mortgage on land to which the maker had no title, which sets out what purports to be an abstract of title to the land, and alleges that defendant and another "did then and there designedly, feloniously, falsely, and fraudulently represent and pretend to the prosecutor that the instrument purporting to be an abstract of title was a true and genuine abstract of title, and the prosecutor believing the instrument to be a true and genuine abstract of title, and believing the false pretenses and representations so made by defendant and another to be true, relying thereon and being deceived thereby, was induced by reason thereof to sell and transfer and deliver to the person purporting to be the maker of the note and mortgage and to his agent the said household goods," etc., is sufficient to show the obtaining of goods by false pretenses under Rev. St. 1899, § 1927 (Ann. St. 1906, p. 1312), or the offense of obtaining property by bogus check or other instrument with intent to cheat or defraud under section 2213 (page 1410).

2. CRIMINAL LAW (§ 805) — INSTRUCTIONS — LENGTH.

The length of an instruction alone will not justify the court in reversing a conviction, unless it contains objectionable features which constitute reversible error.

3. FALSE PRETENSES (§ 52) — TRIAL — INSTRUCTIONS.

In a prosecution for obtaining property under false pretenses by inducing the prosecutor to exchange her household goods for a note secured by a mortgage on land to which the maker had no title, the court's instruction required the jury to find that the alleged representations concerning the abstract of title and other instruments were made by defendant, and that such representations were false and fraudulent; and the further language of the instructions was susceptible of the construction that the court was declaring as a matter of fact that the abstract was not genuine, but was false and fraudulent. Held, that the giving of the instruction was reversible error.

4. CRIMINAL LAW (§ 805) — TRIAL — INSTRUCTIONS.

In a prosecution for obtaining property under false pretenses by the use of a false abstract of title, an instruction should not refer to the abstract of title as set out in the instruction where it is not so set out.

5. CRIMINAL LAW (§ 1172) — REVIEW — HARMLESS ERROR.

The error of an instruction in referring to a written instrument as set out therein when it is not so set out is harmless, where there is sufficient in the instruction to point out to the jury the legal effect of the instrument.

6. CRIMINAL LAW (§§ 419, 420) — EVIDENCE — HEARSAY.

Evidence of the results of an investigation by correspondence as to the truth of representations by defendant is inadmissible in a criminal prosecution; such evidence being hearsay.

7. WITNESSES (§ 387) — CROSS-EXAMINATION.

Great latitude is allowed in the cross-examination of a witness whose testimony varies from that on the former trial.

8. WITNESSES (§ 240) — EXAMINATION — LEADING QUESTIONS.

Permitting leading questions is largely within the discretion of the court.

9. CRIMINAL LAW (§ 1153) — REVIEW — DISCRETION OF COURT.

In the absence of an abuse of the court's discretion, a conviction will not be reversed because of leading questions asked on the trial.

10. WITNESSES (§ 372) — CROSS-EXAMINATION — LATITUDE.

Great latitude should be allowed in the cross-examination of witnesses who have an interest in the prosecution, or by testifying are to receive some immunity from criminal charges.

11. CRIMINAL LAW (§ 1124) — REVIEW — SUFFICIENCY OF RECORD.

The denial of a motion for a new trial for newly discovered evidence will not be reviewed in the absence from the record of the affidavit in support of such motion.

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

W. E. Steele was convicted of obtaining property by false pretenses, and appeals. Reversed.

This cause is now pending in this court upon appeal on the part of the defendant from a judgment of the criminal court of Jackson county, Mo., convicting him of having by false representations and pretenses obtained from one Phianna Wheaton certain household goods of the value of $260.

The information in this cause is quite voluminous; in fact, more so than there was any necessity for. As was said by the representative of the state, the Attorney General, it resembles greatly a bill in equity in a complicated case. Therefore we shall not burden this opinion with a reproduction of it, but will during the course of the opinion make reference to certain portions of it in discussing the challenge on the part of the appellant as to its sufficiency. The defendant upon this information was duly arraigned, and entered his plea of not guilty. A jury was duly impaneled, and the trial of the cause proceeded. Upon this trial there was a disagreement on the part of the jury and they were discharged. On April 29, 1909, a second jury was duly impaneled and the trial proceeded.

The evidence developed upon the trial tended to prove substantially the following state of facts: That in May, 1908, Mrs. Phianna Wheaton owned and was in possession of the household goods described in the information, having purchased them from a Mrs. Corlew on the 5th day of the month mentioned. Learning that the house she was occupying was to be torn down, Mrs. Wheaton told the agent through whom she purchased the goods that she desired to sell them. A short time thereafter this man brought defendant and his codefendant, Watts, to Mrs. Wheaton's house. Mrs. Wheaton's son and daughter were present at this meeting. Defendant wanted to buy the goods, and offered the note described in the information for the property, exhibiting the trust deed, by which the note purported to be secured, and representing that the abstract tendered for examination, it being the abstract described in the information, was a correct abstract of title to certain lands in Stonewall county, Tex., which lands the deed of trust mentioned purported to cover. Defendant told Mrs. Wheaton that the abstract shown her was the "original abstract," and was genuine. He represented that the firm of abstractors by whom the abstract purported to have been made was a reliable one. As to the note, appellant represented to Mrs. Wheaton that he knew the payor's (Cole's) handwriting, that the note was signed by Cole, and that Cole was a rich man; that he had known Cole a long time; and that he was a "good and wealthy man." Appellant also represented to Mrs. Wheaton that the deed of trust which he showed her, that described in the information, secured the note he exhibited and covered 640 acres of land in Stonewall county, Tex. Appellant declared to her that the deed of trust was genuine. On these representations Mrs. Wheaton traded her goods for the note appellant had, relying upon the representations made by appellant. The trade was consummated in Watts' office; Watts going out for appellant after Mrs. Wheaton arrived. Appellant appeared shortly, bringing the papers mentioned with him. Mrs. Wheaton gave a check to Watts for $25 for commission, which was for the use of both Watts and appellant. On this occasion the same persons were present as at Mrs. Wheaton's home, and also Messrs. Murphy and Roarer. Mrs. Wheaton again asked if the abstract was all right, and was assured that it was. As to the representations made by appellant, Mrs. Wheaton was corroborated by her daughter. After the trade was made, Mrs. Wheaton sent the abstract obtained from Steele to the firm of Perry & Johnson, Aspermont, Tex., by whom the abstract purported to be made. The letter to that firm was registered, but never delivered to the addressees, being returned by the postal authorities to Mrs. Wheaton. Investigation also developed that there was no such man as W. J. Cole, the pretended maker of the note traded to Mrs. Wheaton. It appeared that one Hebler or Hibler was in the habit of signing up papers for appellant under the name "W. J. Cole." Prior to trading the note to Mrs. Wheaton, appellant told one Miller that the "abstract was no good," and "wouldn't stand" if submitted to an attorney. It had been "turned down" by an examiner, prior to the trade with Mrs. Wheaton, so appellant admitted to Miller. Appellant traded some of the land covered by the same abstract exhibited to Mrs. Wheaton to one Wilderboor, and attempted at the same time to trade more of the alleged Cole's Texas land. Appellant had attempted to procure one Dickinson to sign a "bogus note," and take a deed of trust made out in his name, but Dickinson refused. Appellant also prepared "bogus" abstracts other than that used in the Wheaton transaction. The abstract used in the Wilderboor trade was the one from which the abstract used in the trade with Mrs. Wheaton was copied. The former was represented by appellant to Wilderboor's agent to be "all right." An investigation disclosed that "there was no title to the property and no such land." Wilderboor executed his deed to his building which he traded for the Texas land in blank. Appellant traded the building to one Hargreave, and Hargreave's name was inserted as grantee, appellant informing Hargreave that he, appellant, "got the building from Wilderboor." Appellant it appeared had had the abstract used in the trade with Mrs. Wheaton typewritten from a pencil copy which he furnished the stenographer for that purpose.

In his own behalf, defendant testified that he had not met the man Cole until after the date of the trade with Mrs. Wheaton; denied having been at Mrs. Wheaton's house with Watts and Burgess; said that he never saw Mrs. Wheaton until the day he met her in Watts' office at the time the...