State v. Zingher

• Citation: 259 S.W. 451,302 Mo. 650
• Decision Date: 04 March 1924
• Docket Number: 25215
• Parties: THE STATE v. NATHAN ZINGHER, Appellant
• Court: United States State Supreme Court of Missouri

259 S.W. 451

302 Mo. 650

THE STATE v. NATHAN ZINGHER, Appellant

No. 25215

Supreme Court of Missouri

March 4, 1924

Appeal from Jackson Circuit Court; Hon. E. E. Porterfield Judge.

Reversed (and defendant discharged).

Burns & Watts for appellant.

(1) The information is insufficient in law, and does not state facts sufficient to charge any offense against the defendant. State v. Donaldson, 243 Mo. 472; State v Martin, 226 Mo. 538. (2) The court erred in giving State's instruction numbered 2. (a) It is broader than the scope of the evidence. State v. Sullinger, 143 Mo.App. 703; State v. Ware, 62 Mo. 597; State v Berry, 179 Mo. 377; State v. Simpson, 237 S.W. 748. (b) The instruction is argumentative, confusing, misleading and assumes the facts in issue. State v. Steele, 226 Mo. 593. (3) The court erred in refusing to give defendant's Instruction "Y." State v. Johnson, 213 S.W. 794; State v. Majors, 237 S.W. 486. (4) The court erred in not sustaining the defendant's instruction in the nature of a demurrer at the end of all the evidence. State v. Chick, 221 S.W. 10; State v. Dines, 206 Mo. 649.

Jesse W. Barrett, Attorney-General, and J. Henry Caruthers, Assistant Attorney-General, for respondent.

(1) The information is sufficient. Sec. 3343, R. S. 1919; State v. Samis, 246 S.W. 957; State v. Foley, 247 Mo. 628. (2) State's instruction numbered 2 is not open to the criticism leveled at it by appellant, and as declared by this court in the case of State v. Steele, 226 Mo. 597, cited by appellant. The court in the instant case, when referring to the negative allegations, used this language: "and the court further instructs the jury that if they further find and believe from the evidence that" (then follows negative averments) and "if you so find, then you will find the defendant guilty," etc. See approved Instruction 2 in State v. Samis, 246 S.W. 959. (3) The refusal to give appellant's instruction "Y" was not error under the evidence. The issue referred to therein was fully covered by the given instructions. (4) Where there is substantial evidence supporting the verdict, as in this case, this court will not interfere. State v. Fields, 234 Mo. 627. Where the evidence is conflicting, it is for the jury to weigh and give such credit as they see fit. State v. Cook, 207 S.W. 832; State v. McKenzie, 177 Mo. 717.

Higbee, C. Railey, C., concurs.

OPINION

HIGBEE

The defendant was convicted of having obtained a loan of $ 4000 from the Union State Bank of Kansas City by false pretenses as to his financial worth, and sentenced to a term of four years in the penitentiary. The information is based on Section 3343, Revised Statutes 1919.

The appellant, by his motion in arrest, challenges the sufficiency of the information. Omitting formal parts, it charges that on May 25, 1920, the defendant did then and there "represent, pretend and say to the Union State Bank, its agents and officers, that he, the said Nathan Zingher, then and there had in his possession, under his control and owned by him assets amounting to $ 34,700, and that his total liabilities were $ 7900, and that he, the said Nathan Zingher, was then and there actually worth in moneys and property over and above his debts, liabilities and exemptions, the sum of $ 26,800, and that the amount of all his liabilities of any kind or character whatever on the 25th day of May, 1920, amounted to $ 7900." Then follow averments that the officers and agents of the bank, believing and relying on said representations, made defendant a loan of $ 4000 of the bank's money, and the defendant, by means of said false pretenses, obtained a loan of $ 4000 from the bank, with intent to cheat and defraud, and that defendant did not then and there have assets in the amount of $ 34,700; that $ 7900 was not all of his liabilities, and defendant was not worth over and above his debts, liabilities and exemptions, $ 26,800.

I. The statement, as pleaded, was that the defendant had assets, etc.; that his total liabilities were $ 7900, and that he was worth in moneys and property over and above his debts, liabilities and exemptions, the sum of $ 26,800. Obviously the statement of the value of his property and of his net worth was not the statement of the value of his property and of statement of a fact, but the defendant's opinion or judgment. In 25 Corpus Juris, p. 595, sec. 19, it is said: "The statement of an opinion or judgment, even if false, will not sustain an indictment for obtaining property by false pretenses." See cases cited in note, among others, that a certain party was wealthy or worth a certain specified amount, citing Com. v. Stevenson, 127 Mass. 446. This accords with the rulings in Missouri. "A mere opinion, however false, is not a false pretense." [State v. Bradley, 68 Mo. 140, 142, cited in State v. Eudaly, 188 S.W. 110, 112.]

In State v. Barbee, 136 Mo. 440, 445, Sherwood, J., said: "Thus, in further illustration of this point, it has been ruled that: 'A sale of goods induced by the buyer's false representation that he had in his office a certain quantity of property liable to his debts, as a means of obtaining credit, will not warrant an indictment. Common prudence would require the prosecutor to resort to further information.' [Rapalje on Larceny, sec. 406; State v. DeHart, 6 Baxt. 222.]"

The subject was thoroughly considered by the late Judge Ellison in Bragg v. Kirksville Packing Co., 205 Mo.App. 600, 608, 226 S.W. 1012, where the learned judge said:

"Now it is held in many jurisdictions and commonly stated in text-books that mere statements of value are not actionable and even if made in bad faith, they were to be regarded as 'dealers talk.' Massachusetts affirms the latter view (Deming v. Darling, 148 Mass. 504) and applies it even though the parties were not on equal footing. [Parker v. Moulton, 114 Mass. 99.] A complete examination of the cases in Missouri will show extreme statements either way. Some that a vendee, though in possession of all his faculties, may lie limp and indolent in his credulity, and yet be allowed to occupy the time of the courts in setting up a guardianship for him. Such persons look upon the courts as children do a parent, ever watchful that they be guarded against their own behavior. But the better opinion is that the courts should encourage self-reliance and turn out those who, having no incapacity, yet apply to the court to do for them what they should have done for themselves. We said in Cahn v. Reid, 18 Mo.App. 115, that even though one loses life or limb, if it came about by his failure to care for himself, he is without redress. Yet in instances involving a few dollars as against a life, some cases extend a helping hand, no matter if listless indifference and neglect have been substituted for ordinary prudence and common sense.

"It is so natural for one to look with favor upon his own property, and such is his selfish desire to extol its value, that men, as far back as we know anything of them, have ever understood that it was unsafe to trust to the opinion of a seller as to the worth and virtue of his own property. . . .

"The latest discussion and ruling we have on this subject in this State is found in Stonemets v. Head, 248 Mo. 243, 262-269. In that case Judge Lamm says that 'the doctrine of "let the buyer beware" must be reckoned with, and that simple general commendation is allowable as puffing and dealers talk, yet there is a boundary that may not be crossed.' Continuing (p. 262) he said (Italics ours) that 'the right general doctrine is that where parties without knowledge of their own, or without means of knowledge, as for example when they reside a distance away "buying, in reliance on misrepresentations of material facts known to be false by the party making them and intended to deceive, such deceived party may have relief."' At page 263, the learned judge said: "Now, there is a general doctrine of the law that ordinarily statement of opinion is not a statement of fact; a mere opinion (as for instance an estimate of value) cannot ordinarily form the basis of a false representation.' At page 265, there is a quotation from 2 Pom. Eq. Jur., sec. 878, that general praise by a seller has always been allowed, and that in order to convert such general praise into a representation upon which the buyer may rely, it must be the 'positive affirmation of a specific fact affecting the quality, so as to be an express warranty.' At page 267 (bottom) it is said: 'The expression of an opinion by the vendor can never be made actionable, if false, unless it be so strong and based on such superior knowledge to the extent that it was relied on as true, and reasonably so by the vendee, as a fact, and known to be thus relied on by the seller.' And at bottom p. 266 there is quoted from 20 Cyc. 58, that 'it is generally held that where the property involved is situated at a distant place and thus an inspection cannot be made without expense and inconvenience, and the prospective purchaser is ignorant of the facts, he may rely on the vendor's positive statements regarding the property and may hold him liable if they are false and fraudulent, even though they are representations of the value, quality, and condition of the property.'

"Summing up (p. 268) Judge Lamm asserts that if the purchaser stands on an equal footing with the seller, he has no right to rely on opinions of value which the latter may express. Furthermore, that he has no such right unless it be out of the power of the purchaser, by reasonable effort to ascertain such value for himself. A number of authorities are cited in support of these propositions, among them, are Cahn v. Reid, 18 Mo.App. 115, 127-131; Stones v. Richmond, 21 Mo.App. 17; Chase v. Rusk, 90 Mo.App. 25;...