State v. Wilson

• Decision Date: 23 November 1909
• Parties: STATE v. WILSON.
• Court: Missouri Supreme Court

122 S.W. 701

223 Mo. 156

STATE v. WILSON.

Supreme Court of Missouri, Division No. 2.

November 23, 1909.

1. FALSE PRETENSES (§ 16) — STATUTORY PROVISIONS — "CONFIDENCE GAME" AS CONSTITUTING OFFENSE.

Rev. St. 1899, § 2213 (Ann. St. 1906, p. 1410), provides that "every person who, with intent to cheat and defraud, shall obtain or attempt to obtain from any other person or persons, any money, property or valuable thing whatever, by means or by use of any trick or deception, or false and fraudulent representation or statement or pretense, or by any other means or instrument or device, commonly called the `confidence game,' or by means or by use of any false or bogus check, or by any other written or printed or engraved instrument, or spurious coin or metal, shall be deemed guilty of a felony," etc. Held, to be manifestly directed against obtaining money or property from one whose confidence has first been secured by false and fraudulent representations in connection with acts done, with intent to cheat and defraud, to provide for a class of false representations not included in some other section dealing with ordinary false representations, and to be intended to reach a class of offenders known as "confidence men," who obtain money by some trick or representation designed to deceive.

2. FALSE PRETENSES (§ 34) — SUFFICIENCY OF INFORMATION.

An information setting out in detail acts and representations of defendant, from which it appears that, by falsely representing he was the traveling salesman of a company with which the prosecuting witness was doing business. by assuming to take an order as such salesman, and by representing that an expected draft for his traveling expenses had not been received, he induced the witness to cash a draft, assumed to be drawn by him on the company therefor, sufficiently charges an offense under such section.

3. CRIMINAL LAW (§ 371) — EVIDENCE — OTHER OFFENSES.

In a prosecution under Rev. St. 1899, § 2213 (Ann. St. 1906, p. 1410), for fraudulently obtaining money by means of a worthless draft, it was competent for the state, for the purpose of showing intent, to introduce evidence of defendant's perpetration, or attempt to perpetrate, frauds on other persons, thereby obtaining money from them under the same or similar circumstances at or near the time of the act in question.

4. CRIMINAL LAW (§ 1043) — PRESERVING OBJECTION TO TESTIMONY FOR REVIEW.

An objection to testimony, to be considered on appeal, should at least briefly indicate some reason therefor.

5. CRIMINAL LAW (§ 382) — EVIDENCE — ADMISSIBILITY — COMPLAINT AND AFFIDAVIT OF PROSECUTING WITNESS.

The complaint and affidavit made by the prosecuting witness before a justice of the peace were properly excluded, in the absence of any tendency to prove or disprove any of the issues involved, or to contradict or impeach any witness.

6. CRIMINAL LAW (§ 770) — TRIAL — INSTRUCTIONS.

There was no error in an instruction which fully covered the charge in the information, and required the jury to find every essential fact necessary to constitute the offense.

7. FALSE PRETENSES (§ 52) — TRIAL — INSTRUCTIONS — LIMITING PURPOSE OF EVIDENCE OF OTHER FRAUDS.

In a prosecution, under Rev. St. 1899, § 2213 (Ann. St. 1906. p. 1410), for fraudulently obtaining money on a worthless draft, an instruction limiting the purpose of evidence of frauds by defendant on other persons at or near the time of the offense in question was entirely proper.

8. CRIMINAL LAW (§§ 778, 789) — TRIAL — INSTRUCTIONS — PRESUMPTION OF INNOCENCE — BURDEN OF PROOF — REASONABLE DOUBT.

An instruction fully covering the presumption of innocence, and informing the jury that the burden of proof rests on the state, and requiring them to find defendant's guilt beyond a reasonable doubt, and directing them in the usual manner that if they entertain such a doubt of his guilt, they should give him the benefit of it, is proper.

9. FALSE PRETENSES (§ 49) — EVIDENCE — SUFFICIENCY.

Evidence held to sustain a conviction in a prosecution, under Rev. St. 1899, § 2213 (Ann. St. 1906, p. 1410), for fraudulently obtaining money by means of a worthless draft.

Appeal from Circuit Court, Texas County; L. B. Woodside, Judge.

D. E. Wilson was convicted of obtaining money fraudulently, and he appeals. Affirmed.

The defendant in this cause has brought this case to this court by appeal from a judgment of the circuit court of Texas county, Mo., convicting him of obtaining fraudulently, by means of a trick and deception, false and fraudulent representations, the sum of $25 from one John H. Bauch. The amended information, which was duly verified, upon which the defendant was tried, was predicated upon the provisions of section 2213, Rev. St. 1899 (Ann. St. 1906, p. 1410). The sufficiency of the information was challenged in the trial court by a motion to quash, as well as in the motion in arrest of judgment. Hence it is well to reproduce the information upon which the judgment in this cause is based. Omitting formal parts, it is as follows:

"John H. Sanks, prosecuting attorney, within and for the county of Texas and state of Missouri, upon his information and belief, informs the court that D. E. Wilson, on the 10th day of January, 1908, in the county of Texas and state of Missouri, then and there with intent unlawfully and feloniously to cheat and defraud one John H. Bauch, then and there unlawfully, knowingly, and feloniously, by use of a trick and deception and false and fraudulent representation, statement, and pretense, did falsely and fraudulently represent and pretend to the said John H. Bauch that he, the said D. E. Wilson, was then and there the representative and authorized agent of the Pratt Food Company of Philadelphia, Pa., a corporation duly incorporated and existing under the laws of the state of Pennsylvania, and that he, the said D. E. Wilson, had full right and authority from the said corporation then and there to transact business for said corporation, to sell and contract for the sale of the goods and products of said corporation, and to furnish advertising matter to the dealers in said goods and products; that he, the said D. E. Wilson, was in the employ of said corporation, and sent by the said corporation for the purpose of selling the goods and products of said corporation, and furnishing and distributing the advertising matter of said corporation to dealers.

"And the said D. E. Wilson in pursuance of his purpose and intent to cheat and defraud the said John H. Bauch as aforesaid, did then and there, as the agent and representative of said corporation, pretend to, and did, sell to the said John H. Bauch a bill of goods and products of the said corporation, and then and there take an order, from the said John H. Bauch, for advertising matter of the said corporation, advertising the goods and products of the same, which order for said goods and advertising matter is in the words and figures as follows: `Order No..... Date .......... M.............: Ship to John M. Bauch. At Cabool, Mo. How ship, Freight. When, At once. Terms, March 1st 60 days. 1,000 letter heads; 1,000 bill heads; 1,000 statements; 1,000 envelopes; 500 handbooks; plenty of signs to tack up on counter; plenty of large Litho signs; ½ bale 12-lb. sacks stock food, printed like sample attached. Ship at once.'

"And he, the said D. E. Wilson, then and there represented to the said John H. Bauch that he had expected to receive a draft or check from the said corporation to defray his traveling expenses as representative of the said corporation, but that said draft or check had not been received, that he, the said D. E. Wilson, was in need of money to defray said traveling expenses, and requested the said John H. Bauch to cash a draft of the said corporation for the sum of $25 for the purpose of defraying said traveling expenses, which said draft he, the said D. E. Wilson, then and there drew on said corporation, said draft being in the words and figures as follows: $25.00. `Cabool, Mo., 1-10-1908. At sight pay to the order of John H. Bauch, twenty-five dollars, value received, and charge the same to the account of D. E. Wilson. To Pratt Food Co. No. ______. Phila. Pa.' — which said draft the Pratt Food Company refused to honor and pay, but returned the same to the said John H. Bauch, and the said John H. Bauch, believing the said false and fraudulent representations and statements and pretenses made as aforesaid by the said D. E Wilson to be true, and being deceived thereby, was induced by reason thereof, and did then and there cash said draft, and in pursuance thereof paid to the said D. E. Wilson the sum of $25 lawful money of the United States of the value of $25; and the said D. E. Wilson by means and use of said trick, deception, false and fraudulent representations, statements, and pretenses so made as aforesaid, then and there unlawfully, knowingly, and feloniously did obtain from him, the said John H. Bauch, the sum of $25, the money and property of the said John H. Bauch, with the intent then and there unlawfully and feloniously to cheat and defraud him, the said John H. Bauch, of the same.

"Whereas, in truth and in fact, the said D. E. Wilson did not have any right or authority then and there to transact business for said corporation, and was not then their representative or authorized agent of said corporation to sell and contract for the sale of the goods and products of the said corporation, or the furnishing of advertising matter to dealers for said corporation; that he was not employed in any manner by said corporation, and he, the said D. E. Wilson, well knew that he, the said D. E. Wilson, did not have any right or authority then and there to transact business for said corporation, or to sell the goods and products of the same, or furnish dealers with advertising matter, advertising the business of said corporation, or to receive any draft or checks or money from the said...