State v. Stegall

• Citation: 353 S.W.2d 656
• Decision Date: 12 February 1962
• Docket Number: No. 1,No. 48826,48826,1
• Parties: STATE of Missouri, Respondent, v. Lawrence STEGALL, Appellant
• Court: United States State Supreme Court of Missouri

Page 656

353 S.W.2d 656

STATE of Missouri, Respondent, v. Lawrence STEGALL, Appellant.

No. 48826.

Supreme Court of Missouri, Division No. 1.

Feb. 12, 1962.

Robert A. McIlrath, Flat River, for appellant.

Thomas F. Eagleton, Atty. Gen., Phillip C. Houx, Sp. Asst. Atty. Gen., for respondent.

HOLMAN, Commissioner.

Appellant, Lawrence Stegall, hereinafter referred to as the defendant, was found guilty of the offense of obtaining money by false pretenses and his punishment was fixed by the jury at imprisonment in the penitentiary for a period of two years. He has appealed from the ensuing judgment.

Mr. J. S. Warner, Cashier of the Bank of Leadwood, testified that the defendant came to the bank on May 21, 1959, and told him that 'he was buying a new 1959 Ford station wagon and wanted to borrow some money to purchase that automobile'; that he wanted to borrow $1,200 'on that automobile'; that he had a description of the car and its motor number, C9GR125448, written on a piece of paper; that a note in the amount of $1,566.24 and a chattel mortgage describing the car were prepared and executed by the defendant; that $1,200 was then paid to defendant (the remaining $366.24 being finance charge, interest, and insurance for two years); that defendant thereafter made certain payments on the note so that the balance due thereon (after crediting a refund of $88.20 received when the insurance policy was cancelled) was $880.63.

Trooper C. C. Maddox of the highway patrol testified that on December 6, 1959, he talked with the defendant at the county jail and defendant stated that 'he had signed a mortgage at the Bank of Leadwood; that he had never owned a 1959 Ford Ranch Wagon, and that as far as he knew no such wagon ever existed.' Sheriff Clay Mullins testified to substantially the same statement on the part of the defendant. H. V. Henderson, field officer for the Missouri Motor Vehicle Department, testified that he had checked the records and had found no record of the registration of the automobile described in the chattel mortgage in question.

Over the objection of defendant evidence was admitted tending to prove that defendant had committed two other allegedly similar offenses. We will hereinafter state the facts concerning that proof in our consideration of the contention that the court erred in the admission of same.

In his defense defendant testified that he bought the car described in the chattel mortgage in St. Louis from 'a fellow by the name of Ellis' and had the car and a bill of sale thereto at the time he borrowed the money but did not obtain a title to the car. Defendant's sister-in-law testified that defendant had a 1959 Ford station wagon but she never saw it after defendant's wife 'had left.'

Defendant has not filed a brief in this court so we review the assignments properly raised in his motion for new trial.

The first assignment in the motion is that the trial court should have entered a judgment of acquittal for the reason that the information failed to state an offense.

We are of the opinion that the information in this case is fatally defective. In a case of this kind the allegation is required that the party defrauded relied upon and believed in the truth of the pretenses made by the defendant and was thus induced to part with his money or property. State v. Loesch, Mo.Sup., 180 S.W. 875; State v. Workman, Mo.Sup., 199 S.W. 131; State v. Robinson, Mo.Sup., 14 S.W.2d 452. That allegation is completely omitted from the information in this case.

We have concluded, however, that the judgment should not be reversed outright but that the cause should be reversed and remanded so as to give the State an opportunity to seek leave to file an amended information or to take such other action as the prosecuting attorney may deem advisable. In that connection, we suggest that the prosecuting attorney give consideration to the question as to whether, under the evidence presented at the trial and any other evidence that may be available, the charge should be under Section 561.450 or Section 560.156 (unless otherwise indicated all statutory references are to RSMo 1959, V.A.M.S.).

This court, in discussing the section now designated as Sec. 561.450 has stated that its purpose was 'to provide for a class of false representations not included in some other section dealing with the subject of the ordinary false representations. It was intended to reach a class of offenders known as 'confidence men,' who obtain the money of their victims by means of, or by the use of, some trick or representation designed to deceive.' State v. Wilson, 223 Mo. 156, 122 S.W. 701, 704. See also State v. Weber, Mo.Sup., 298 S.W.2d 403, and State v. Weber, Mo.Sup., 302 S.W.2d 919. Prior to 1955 cases involving so-called 'ordinary' false representations were usually founded on Section 561.370, RSMo 1949, V.A.M.S. That section was one of many sections repealed, Laws of Missouri 1955, p. 507, at the time of the enactment of the new 'stealing' law, now Sec. 560.156. This last-mentioned section provides, in part, that 'It shall be unlawful for any person to intentionally steal the...