The State v. Chick

• Decision Date: 09 April 1920
• Citation: 221 S.W. 10,282 Mo. 51
• Parties: THE STATE v. JOSEPH S. CHICK, JR., Appellant
• Court: Missouri Supreme Court

221 S.W. 10

282 Mo. 51

THE STATE v. JOSEPH S. CHICK, JR., Appellant

Supreme Court of Missouri, Second Division

April 9, 1920

Appeal from Jackson Circuit Court. -- Hon. Alonzo D. Burns, Judge.

Affirmed.

Frank P. Walsh, Henry L. Jost, Henry S. Conrad, R. R. Brewster, M E. Casey, M. M. Bogie and James P. Aylward for appellant.

(1) The indictment fails to allege that defendant either sold assigned or delivered the note to Miss Kennedy or that Miss Kennedy bought it and parted with her money for it, relying on the false or fraudulent representations of defendant. It is, therefore, fatally defective and will not support a conviction. State v. Bonnell, 46 Mo. 397; State v. Saunders, 63 Mo. 484; State v. Clay, 100 Mo 583; State v. Hathaway, 106 Mo. 236; State v. Terry, 109 Mo. 501; State v. Stowe, 132 Mo. 199; State v. Barber, 136 Mo. 443; State v. Phelan, 159 Mo. 129; State v. Kelly, 170 Mo. 151; State v. Hubbard, 170 Mo. 354; State v. Meysenburg, 171 Mo. 50. Because of the defect in said indictment, any evidence tending to prove a sale, transfer, assignment or delivery of said note was inadmissible. (2) There was a failure of proof or a fatal variance between the proof and the allegations of the indictment, the charge in the indictment being that defendant received $ 1,600 in lawful money of the United States, when the evidence showed he received a check for $ 2,550, drawn on the Missouri Savings Bank of Kansas City Missouri. State v. Munroe, 273 Mo. 341; State v. Bouslog, 266 Mo. 73; State v. Mispagel, 207 Mo. 557; State v. Castleton, 255 Mo. 201; State v. Rosefelt, 184 S.W. 904; State v. Salmon, 216 Mo. 251; State v. Shapiro, 216 Mo. 359; State v. Plant, 209 Mo. 307. (3) There was another material and prejudicial variance between the allegations in the indictment and the proof offered in support thereof, in that the indictment set forth a certain mortgage-bond note and deed of trust, and the proof showed a number of checks, promissory notes, deeds of trust, interest-coupon notes, documents, with printed conditions thereon, which were not set forth and averred in said indictment and of which this defendant had no notice until the trial of this cause, when the same were introduced in evidence by the State over the objections and exceptions of the defendant. Authorities above. (4) If the representations alleged to have been made by the defendant were representations as to the law, or conclusions of law, the same cannot be made the basis of a prosecution for obtaining money by false pretenses, and on the other hand, if such representations were representations of fact, which were shown by the record to be true, there can be no conviction. State v. Cameron, 117 Mo. 648; State v. Barbee, 136 Mo. 445; State v. Lawrence, 178 Mo. 350; State v. Anderson, 186 Mo. 25; State v. Powell, 266 Mo. 108; State v. Jamison, 268 Mo. 195. (5) Instruction No. 2 given by the court on behalf of the State is erroneous. State v. Kennedy, 177 Mo. 119; State v. Boatright, 182 Mo. 49; State v. Steele, 226 Mo. 593; Stid v. Mo. Pac. Ry., 236 Mo. 398. (6) Instruction No. 7 given on behalf of the State is erroneous. State v. Mispagel, 207 Mo. 557; State v. Castleton, 225 Mo. 210; State v. Small, 272 Mo. 507. (7) The unwarranted remarks, statements, comments and references of the prosecuting attorneys, officially and specially employed, concerning the personal appearance of defendant, his failure to testify, and making him an object of personal abuse and ridicule, made in the presence of the jury, were highly prejudicial to the substantial rights of the defendant and were calculated to and did deprive this defendant of a fair and impartial trial, necessitating a reversal of this cause. State v. Graves, 95 Mo. 510; State v. Jackson, 95 Mo. 653; State v. Young, 95 Mo. 365; State v. Moxley, 102 Mo. 374; State v. Ullrich, 110 Mo. 365. (8) The improper conduct and comments of the court in expressly approving the prejudicial remarks and statements of the prosecuting attorney in the presence of the jury were highly prejudicial, calculated to and did deprive the defendant of his right to a fair and impartial trial. Wright v. Richmond, 21 Mo.App. 76; State v. Kring, 64 Mo. 591; Rose v. Kansas City, 125 Mo. 235; Wheeler v. Wallace, 53 Mich. 355; State v. Dozier, 177 S.W. 359. (9) The court committed error in refusing to sustain defendant's motion to dicharge the jury at the time the witness, Mrs. E. L. Massie began to sob and cry violently and aloud, without any apparent reason, in the presence of the jury.

Frank W. McAllister, Attorney-General, and Henry B. Hunt, Assistant Attorney-General, for respondent; Isaac B. Kimbrell of counsel.

(1) The indictment is sufficient. Secs. 4565, 4765, R. S. 1909; Laws 1913, p. 222; Laws 1911, p. 194; State v. Young, 266 Mo. 730; State v. Foley, 247 Mo. 628; State v. Loesch, 180 S.W. 878. (a) The indictment alleges the assignment of the note. State v. Bonnell, 46 Mo. 397; State v. Saunders, 63 Mo. 484; State v. Clay, 100 Mo. 583; State v. Hathaway, 106 Mo. 236; State v. Terry, 109 Mo. 501; State v. Stowe, 132 Mo. 199. (b) Therefore, the evidence tending to prove a sale, assignment and delivery of said note was relevant and admissible. (2) There was no variance between the allegations of the indictment and the proof. The allegation that appellant received money, was fully met by proof that he received a check which he thereafter cashed. He said he got the money. State v. Terry, 109 Mo. 622; State v. Foley, 247 Mo. 633; State v. Palmer, 40 Kan. 477; Lewis v. Com., 91 S. E. (Va.) 174; State v. Gibson, 132 Iowa 56; State v. Germain, 103 P. 523; People v. Leavens, 106 P. 1106; State v. Jackson, 69 S. E. (S. C.) 885; State v. Daniel, 83 S.C. 313; State v. Dimick, 107 N.Y. 32; People v. Lammerts, 164 N.Y. 144. (3) The giving in evidence of the deeds of trust, notes and checks other than the instruments set forth in the indictment, were relevant on the question of intent, and to prove the very crime charged. It was not necessary for the pleader to set forth the evidence in the indictment. State v. Hyde, 234 Mo. 226; State v. Bailey, 190 Mo. 280; State v. Myers, 82 Mo. 562; State v. Bayne, 88 Mo. 609; State v. Wilson, 143 Mo. 345; State v. Rosenberg, 162 Mo. 371; State v. Katz, 266 Mo. 502; State v. Patterson, 271 Mo. 109; State v. Hill, 273 Mo. 337. (a) The representations made by appellant were representations as to past events and existing facts that were shown to be false; and were not representations as to the law; nor were the representations made as to facts which were shown to be true. State v. Nord, 230 Mo. 660; State v. Krouse, 171 Mo.App. 429; State v. Evers, 49 Mo. 545; State v. Vorback, 66 Mo. 172; State v. DeLay, 93 Mo. 102. (4) Instruction No. 2, given on behalf of the State, is not erroneous. It sets forth the general charge, is bottomed upon the indictment, and required the jury to find every element of the crime before it could convict. It properly submitted the question of conspiracy. Sec. 4565, R. S. 1909; State v. Keyes, 196 Mo. 161; State v. Sykes, 191 Mo. 78; State v. Potts, 239 Mo. 411; State ex rel. v. Ice Co., 246 Mo. 219. (5) Instruction No. 7, given for the State, states the law. State v. Hoshor, 67 P. 388. (6) The remarks of counsel do not warrant a reversal of this case. State v. Hughes, 258 Mo. 271; State v. Prunty, 208 S.W. 97. (7) The remarks of the court do not warrant a setting aside of the verdict. State v. Hughes, 258 Mo. 271. (8) The court did not err in refusing to discharge the jury because of the crying of Mrs. Massie.

MOZLEY, C. White, C., concurs; Railey, C., not sitting.

OPINION

MOZLEY, C. --

Joseph S. Chick, Jr., was indicted by a grand jury in the Circuit Court of Jackson County, Missouri, in which he is charged that by the use of false representation and pretense he feloniously defrauded Miss. A. P. I. Kennedy of the sum of $ 1600. He was tried in said court before a jury on the 11th day of the September term, 1918, and convicted, and his punishment fixed at two years in the penitentiary. Motions for new trial and in arrest were filed and overruled by the court, and exceptions to that action were duly preserved. The case is regularly here on defendant's appeal.

Miss. A. P. I. Kennedy was a school teacher and had been for more than thirty years. She had taught for thirty years in Kansas City; she taught in the country before going to Kansas City. Defendant had gone to school to her in the country when he was a small boy, and she had known him since that time; she knew defendant's family and had great respect for them and, also, for the defendant. By dint of perseverance and careful saving she had, during the thirty years of her scholastic work, gotten together $ 2500 or $ 2600 in money.

The defendant had also moved to Kansas City and was operating a business known as the "Chick Investment Company," and the entire operations of the concern were in his hands (he owned all the stock) and were performed personally by him or under his immediate supervision and direction. It appears from the evidence that a part of his business was to sell notes secured by first mortages on approved real estate to customers who desired to make what they thought were safe investments (and such investments were represented by him to be safe) and make the amount thus invested earn interest until the note would fall due and be paid off by the maker thereof. Miss Kennedy desired to invest her money in this wise with defendant, in fact defendant earnestly solicited her to do so, and it resulted that he sold her two notes on December 16, 1914, which defendant told her were secured by first mortages. This transaction is detailed by the testimony of Miss Kennedy as follows:

"Q. Did you have any business dealings...