State v. Wren

• Decision Date: 12 August 1933
• Docket Number: 32738
• Parties: The State, Plaintiff, v. James L. Wren
• Court: Missouri Supreme Court

62 S.W.2d 853

333 Mo. 575

The State, Plaintiff, v. James L. Wren

No. 32738

Supreme Court of Missouri

August 12, 1933

Writ of Error to Circuit Court of City of St. Louis; Hon Clyde C. Beck, Judge.

Reversed and remanded (with directions).

Roy McKittrick, Attorney-General, and Franklin E. Reagan Assistant Attorney-General, for plaintiff in error.

(1) The writ of error was properly sued out in this case. Secs. 3752 3753, R. S. 1929; State v. Martin, 230 Mo. 10; Sec. 3755, R. S. 1929; State v. Carson, 18 S.W.2d 459. (2) The use of the term "influence" was a representation as to an existing fact. Lawson v. State, 179 S.W. 818; Jules v. State, 36 A. 1029; Commonwealth v. Howard, 24 Pa. Dist. 1075; Commonwealth v. Murphy, 27 S.W. 859; Farr v. Thompson, 1 Speer, 102; Marshall v. Flinn, 49 N.C. 199; State v. Vandenburg, 159 Mo. 238; 2 Am. Cr. Rep. 242; Ranney v. People, 22 N.Y. 413; Com. v. Parker, Thatch (Mass.) C. R. 24; State v. Bayne, 80 Mo. 608; People v. Winslow, 39 Mich. 507; State v. Keyes, 196 Mo. 153; Pickens v. State, 180 S.W. 234; Lamkin v. State, 260 S.W. 567. (3) The representation that other applicants were paying from $ 150 to $ 300 is a representation as to an existing fact. State v. Turley, 142 Mo. 403; State v. Hubbard, 170 Mo. 346; State v. McBrien, 265 Mo. 594; State v. Nord, 230 Mo. 660; State v. Switzer, 63 Vt. 604, 22 A. 724, 25 Am. St. Rep. 789. (4) The indictment is sufficient to properly charge the crime of obtaining money under false pretenses. State v. Foley, 247 Mo. 629; State v. Young, 266 Mo. 723; State v. Shout, 263 Mo. 360; State v. Donaldson, 243 Mo. 460; State v. Loesch, 180 S.W. 875; State v. Rosenheim, 303 Mo. 553; State v. Roberts, 201 Mo. 702; State v. Samis, 246 S.W. 958; State v. Gerhardt, 248 Mo. 543.

Verne Lacy and James L. Wren for defendant in error.

(1) If the pleadings of the State disclose that the defendant cannot be convicted, he should not be put upon trial. State v. Leonard, 171 Mo. 622, 71 S.W. 1018. (2) The use of the term "influence" was not a representation as to an existing fact or past event. Pickins v. State, 180 S.W. 234; Respublica v. Ray, 3 Yeates, 66; Schwabe v. Estes, 218 S.W. 909; State v. Vandenburg, 159 Mo. 230, 60 S.W. 81; 25 C. J. p. 595, sec. 15-C; 31 C. J. p. 1184, sec. 3-B, p. 1186, sec. 5-B. (3) The representation that other applicants were paying from $ 150 to $ 300 was surplusage and adds nothing to the sufficiency of the indictment. State v. Morris, 132 S.W. 594. (4) The indictment is insufficient to properly charge the crime of obtaining money under false pretenses. State v. Houchins, 46 S.W.2d 894.

Cooley, C. Westhues and Fitzsimmons, CC., concur.

OPINION

COOLEY

Writ of error by the State from an order and judgment of the Circuit Court of the City of St. Louis quashing an indictment theretofore duly returned against defendant in error and discharging him. For convenience we shall refer to him as the defendant. The indictment charges him with having feloniously obtained from one Ralph Woods the sum of $ 175. Omitting caption and formal parts, it charges:

". . . that JAMES L. WREN on or about the 16th day of May, one thousand nine hundred and thirty, at the City of St. Louis aforesaid, feloniously and designedly with intent to cheat and defraud one Ralph Woods, did falsely pretend to the said Ralph Woods that he, the said JAMES L. WREN, had influence with a member of the Board of Police Commissioners of St. Louis, Missouri, and that he, the said JAMES L. WREN, upon payment to him by said Ralph Woods of the sum of $ 175, by using said influence aforesaid, would have him, the said Ralph Woods, put in the next school of instruction of probationary patrolmen of the City of St. Louis, Missouri, and would get him on the police force of said City; that all applicants for the position of patrolmen were paying from $ 150 to $ 300 to get on the police force; that the sooner the said Ralph Woods paid or put up said sum of one hundred and seventy-five dollars the sooner he would get on the police force; and the said Ralph Woods, believing the said false pretenses, so made as aforesaid, to be true, and being deceived thereby, and relying thereon, was by reason thereof induced to and did then and there pay to the said James L. Wren the sum of one hundred and seventy-five dollars, lawful money of the United States of the value of one hundred and seventy-five dollars, and that the said James L. Wren, by means of the said false pretenses, so made to the said Ralph Woods as aforesaid, unlawfully, feloniously and designedly did obtain of and from the said Ralph Woods the said sum of one hundred and seventy-five dollars, of the value of one hundred and seventy-five dollars, of the moneys and property of the said Ralph Woods, with intent him, the said Ralph Woods then and there to cheat and defraud of the same."

Then follow allegations negativing the alleged false pretenses which, for brevity, we omit, no point being made as to their sufficiency.

The motion to quash, which the court sustained, alleges that the indictment does not state facts sufficient to constitute a criminal offense and charges no offense; that it "fails to charge scienter against this defendant;" and that it charges him "with uttering opinions instead of false representations." Scienter is alleged in the portion of the indictment we have omitted. The specific grounds upon which the defendant contends here that the indictment is insufficient is that it does not charge misrepresentation as to an existing or past fact but only a promise to do something in the future. Defendant argues that the representation or alleged false pretense that defendant had influence with the Board of Police Commissioners was not the representation of an existing fact but "connotes a future activity, a future ability to intercede, sway or persuade the board to appoint Woods to the police force," and that according to the charge in the indictment "Woods paid the defendant money because he thought the defendant had the ability to do something for him in the future. It was the representation of this future activity upon which the prosecuting witness parted with his money."

The indictment is drawn under Section 4095, Revised Statutes 1929 (4 Mo. Stat. Ann. p. 2894), making it a crime for any person, with intent to cheat or defraud another, designedly, by any false token or writing, or by any other false pretense, to obtain from any person money or property. The false pretense, to come within the statute, must be as to an existing or past fact, not a promise as to something to take place in the future. But a false pretense as to an existing or past fact may be sufficient to sustain a prosecution though there be coupled with it a promise to do something in the future. This question was considered in State v. Vandenburg, 159 Mo. 230, 60 S.W. 79. In that case the defendant falsely represented himself to be the authorized agent of an insurance company and that he had authority from the company to sell and contract for the sale of life insurance policies and to collect premiums thereon and had been sent by the company to sell the prosecuting witness, Schloeman, a policy; and by such false pretenses induced Schloeman to enter into a contract whereby the latter was to purchase a policy which the defendant promised him the company would, within a few days, execute and deliver to him; by means of which representations the defendant obtained Schloeman's note. It was contended that the note was obtained by the defendant by reason of a contract or promise to be carried out in the future, wherefore the defendant was not guilty of an offense under the statute. The court said, 159 Mo. l. c. 237:

"It may be conceded that a false representation or promise as to a future event, is not a false pretense within the meaning of the statute; but, 'where a false representation of an existing or past fact, calculated to induce the confidence which led the prosecutor to part with his property, is accompanied by or blended with a promise to do something in the future, this is a sufficient false pretense, although the promise, as well as the false statement of fact, operated upon the mind of the prosecutor in inducing him to part with his property.' [12 Am. and Eng. Ency. of Law (2 Ed.) 812.]"

The court quoted from 2 Bishop Criminal Law (8 Ed.), section 424: "It would be difficult to find in actual life any case wherein a man parted with his property on a mere representation of fact, whether true or false, without an accompanying promise." That the false representation in order to sustain a prosecution need not have been the sole inducement causing the victimized person to part with his money or property, see, also, Lawson v. State (Ark.), 179 S.W. 818; Pickens v. State (Tex. Crim. App.), 180 S.W. 234; Jules v. State (Md.), 36 A. 1027; Commonwealth v. Howard, 24 Pa. Dist. Ct. 1075; People v. Winslow, 39 Mich. 505; note to Barton v. People (Ill.), 25 Am. St. Rep. 375, l. c. 380; In re Snyder, 17 Kan. 542, 2 Am. Cr. Rep. 228. In the latter case, 2 Am. Cr. Rep. l. c. 239, it is said that in order to constitute the offense of obtaining goods by false pretenses the false pretenses need not be the sole, nor even the paramount cause of the delivery. "It is sufficient if they are a part of the moving cause, and without them the prosecutor would not have parted with his property."

In the instant case defendant adopts from Webster's International Dictionary the definition of "influence" as "the act or process, or the power , of producing an effect without apparent force or direct authority" (italics ours), and argues that the definition has reference to the future, "for 'producing' has no connection with a past event or an existing fact, but refers...