The State v. Flanders
| Decision Date | 21 November 1893 |
| Citation | 23 S.W. 1086,118 Mo. 227 |
| Parties | The State v. Flanders, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Criminal Court. -- Hon. J. W. Wofford, Judge.
Affirmed.
Samuel Foster, Kenneth McC. DeWeese and Boland & O'Grady for appellant.
(1) The indictment is bad for duplicity, and charges no crime. The court erred in not sustaining the defendant's demurrer to the indictment. United States v. Nunnemacker, 7 Biss. 129-131; Jackson v. State, 11 Ohio, St. 104; State v. Berrman, 8 Nev. 262; State v Burt, 64 N.C. 619. (2) The court erred in denying defendant's petition asking permission to prove that the grand jury that found the indictment was so unlawfully drawn and summoned as to constitute no grand jury, and hence their acts were void, and not merely voidable, and an indictment found by them was no "true bill," and conferred no jurisdiction upon the court over the subject-matter of the alleged crimes. It is never too late to raise and urge a want of such jurisdiction. (3) The court erred in overruling defendant's objection where the state was permitted to prove the acts and declarations of appellant's codefendant, Sleek, done and made in the absence of defendant Flanders, before any evidence of collusion or confederacy between them had been given. Walls v. State, 125 Ind. 400-402; Ormsby v. People, 53 N.Y. 473-474; (4) It was a fatal error to admit evidence of acts and declarations of Sleek after the consummation of the alleged crime. State v. Hilderbrand, 105 Mo. 318; Rapalje's "Larceny and Kindred Offenses," sec 507, p. 732; United States v. Gooding, 12 Wheat 469; Belcher v. State, 125 Ind. 419; Walls v. State, 125 Ind. 400; Ormsby v. People, 53 N.Y. 472; Polk, v. State, 45 Ark. 165; State v. Fredericks, 85 Mo. 145; State v. Duncan, 64 Mo. 263; Latham v. Agnew, 70 Mo. 48. (5) The court erred in admitting the certified copy of the deed in evidence. First. Defendant had not been notified to produce the original and the original was the best evidence. Second. The deed does not on its face appear to have been the one executed by Goetz on the twenty-third of April, and by his wife on the twenty-fifth of April, as the deed in question was shown to have been. (6) At the close of the state's evidence the court should have struck out all the evidence of acts and declarations of Sleek. Walls v. State, 125 Ind. 400-402; 2 Roscoe's Criminal Evidence, marg. p. 13; Berry v. State, 31 Ohio St. 219; Ormsby v. People, 53 N.Y. 472. (7) The evidence as a whole is insufficient to sustain the verdict. Ormsby v. People, 53 N.Y. 472; People v. Bennett, 49 N.Y. 137; State v. Healy, 50 Mo.App. 243; State v. Hilderbrand, 105 Mo. 318; 2 Bishop on Criminal Law [8 Ed.], secs. 461-452, p. 265, 266, and sec. 483, p. 276, etc., and cases there cited. (8) The court erred in giving and refusing instructions.
R. F. Walker, Attorney General, Marcy K. Brown, Prosecuting Attorney and J. J. Williams, Assistant Prosecuting Attorney for the state.
(1) The indictment is not open to the objection of duplicity. 1 Bishop on Criminal Procedure [3 Ed.], secs. 440 and 480. Revised Statutes 1889, sec. 3535. (2) The indictment charges a pretense of an existing fact and that the Goetzes were deceived by the false pretense; this is sufficient even though an accompanying promise is charged and proved. State v. Johnson, 80 Mo. 97; State v. Sarony, 95 Mo. 349. (3) The description of the property in the indictment is sufficient. State v. Scott, 48 Mo. 422; State v. Lawn, 80 Mo. 242; State v. Ware, 62 Mo. 597; State v. Watson, 65 Mo. 115. (4) It is a matter resting in the discretion of the court to admit in evidence the acts and declarations of an alleged co-conspirator before proof of the conspiracy. State v. Walker, 98 Mo. 95; 2 Bishop on Criminal Procedure [3 Ed], sec. 227. (5) The evidence tended to show the conspiracy which may be inferred from facts and circumstances. State v. Walker, supra; Goetz v. Flanders, 22 S.W. 945. (6) Nor did the court err in admitting evidence after the alleged termination of the conspiracy. First. The conspiracy was not ended. Second. The objection was not made in the lower court. (7) The record copy of the deed was rightly admitted in evidence.
At the January term, 1893, of the Jackson criminal court the defendant was jointly indicted with one Henry Sleek, charged with feloniously and designedly obtaining from Ludwig Goetz and Henrietta Goetz, his wife, by means of false and fraudulent representations, a general warranty deed to lot No. 8, of block No. 63, in Kansas City, Mo., with the intent to cheat and defraud. At the same term this defendant was arraigned and entered his plea of not guilty. He then filed his separate demurrer, which was by the court overruled and the cause continued until the next regular term. Defendant thereupon filed his special plea to the indictment, which was by the court denied. At the April term, 1893, of said court, the defendant was tried, convicted, and his punishment assessed at imprisonment in the penitentiary for a term of three years. And after unsuccessful motions for a new trial and in arrest, defendant appealed to this court.
The testimony discloses these facts: That on the twenty-third day of April, 1890, Ludwig Goetz and his wife were the owners of two houses and lots, described as lot eight, in block No. 63, in Eastern Kansas, an addition to the city of Kansas, that they had lived in one of these houses for more than twenty years, and rented the other house to a tenant; that Dr. Flanders, the defendant in this case, resided near them, and had made numerous efforts to purchase this property. These people disliked Flanders and would have nothing to do with him, and refused at all times to sell the property to him. They were poor, ignorant Germans, and unable to read or write English. On this property were two mortgages, amounting to about $ 2600. A few weeks prior to April 23, one Henry Sleek, who is jointly indicted for this crime with this defendant, learning of the mortgage upon this property, went to Goetz and wife and urged them to permit him to secure for them a loan of eastern money on long time, sufficient to make up and satisfy the other mortgages, which they agreed to do. A general warranty deed was presented to them and represented to be a deed of trust to secure this loan of eastern money, and was signed by them and duly acknowledged, which conveyed to defendant, Flanders, the property above described. Flanders accepted the deed, and when informed of the fraud refused to reconvey the property. He also refused to pay off the other mortgages, but offered to buy them, providing the parties would assign them to him; this they refused to do, but offered if Flanders would pay them, to satisfy and discharge them upon the record. The testimony tends to show that Sleek was the agent of and acting for this defendant, yet at no time did he convey the knowledge or intimate to Goetz or his wife that the transaction was being made with Flanders. Goetz and his wife both positively deny any knowledge as to the contents of the deed signed by them, or that they ever authorized Sleek or any one else to sell the property for them.
The defendant's first contention is that the indictment is bad for duplicity and that the demurrer thereto should have been sustained. It is contended that the indictment charges the defendant with having in the transaction obtained two separate and distinct articles, real estate, which is one offense under the statute, and signatures to a deed, which is another offense, the punishment for which is different, and that the indictment is therefore double.
After making all the necessary averments as to false representations, the indictment contains the following allegations:
"And the said Henry Sleek and Francis L. Flanders then and there, with the felonious intent to cheat and defraud the said Ludwig Goetz and Henrietta Goetz of their right, title, interest and property in and to said lot eight (8), feloniously and designedly, by means of said pretenses and representations so made as aforesaid, did obtain and receive of and from the said Ludwig Goetz and Henrietta Goetz the execution, acknowledgment and delivery as aforesaid, of the warranty deed aforesaid, and all the right, title, interest and property of the said Ludwig Goetz in and to said lot eight."
Then follows the allegation of the value of the property, and the indictment closes with the allegation of knowledge on the part of the defendant and Sleek.
The section of the statute under which the indictment was drawn (sec. 3564, Revised Statutes 1889), provides that, "Every person who, with intent to cheat or defraud another, shall designedly, by color of any false token or writing, or by any other false pretense, obtain the signature of any person to any written instrument, * * * shall, upon conviction thereof, be punished in the same manner and to the same extent as for feloniously stealing the money, property or thing so obtained."
The punishment for such an offense is fixed by section 3541, Revised Statutes, 1889, at imprisonment in the penitentiary not exceeding five years, or in the county jail not less than six months, or by fine not exceeding $ 1,000 or less than $ 500, or by both a fine not less than $ 100 and imprisonment in the county jail not less than three months.
The gist of the offense is the obtaining the signatures to the deed, an instrument of writing with intent to cheat and defraud, and all other averments as to the acknowledgment and delivery of the deed, and the title of Goetz in and to the property were mere surplusage and of no consequence. If the thing, that is, deed was thus obtained, the offense was then complete. Mr. Bishop (...
To continue reading
Request your trial