The State v. Foley

• Decision Date: 19 February 1913
• Parties: THE STATE v. RICHARD FOLEY, Appellant
• Court: Missouri Supreme Court

153 S.W. 1010

247 Mo. 607

THE STATE
v.
RICHARD FOLEY, Appellant

Supreme Court of Missouri, Second Division

February 19, 1913

Appeal from St. Louis City Circuit Court. -- Hon. Wilson A. Taylor, Judge.

Affirmed.

John A. Gernez for appellant.

(1) There was an entire failure of proof to sustain the allegations of the second count. (2) The defendant having a just claim against the city of St. Louis, the fact that he enforced collection of the same by alleged false pretenses is no crime. People v. Thomas, 3 Hill, 169; Comm. v. Duffy, 126 Mass. 467; R. v. Williams, 7 Car. & P. 354; State v. Hurst, 11 W.Va. 54; 2 Bish. Cr. Law (8 Ed.), sec. 466; Comm. v. Henry, 22 Pa. St. 256; State v. Jamison, 37 Ark. 445. (3) The mere opinion expressed by the defendant that the city was indebted to him, is not a statutory false pretense. 2 Bish. Cr. Law (8 Ed.), sec. 1429; State v. Johnson, 41 Tex. 65; State v. Webb, 26 Iowa 262; State v. Heffner, 84 N.C. 751; People v. Jacobs, 35 Mich. 36. (4) The taking of the first count from the jury by the court, as far as that count was concerned, acted as an acquittal; and the essence of the offense charged being the same in both counts, an acquittal on the first count operates as a bar to a conviction on the second. State v. Hess, 240 Mo. 147; State v. Headrick, 179 Mo. 300; State v. Brotzer, 245 Mo. 499. (5) Proof of obtaining a "warrant" by false pretenses does not sustain a conviction for obtaining by such pretense the sum of twenty dollars, for which the warrant was cashed. State v. Mispagel, 207 Mo. 557; Comm v. Wood, 142 Mass. 459; Comm. v. Howe, 132 Mass. 256; People v. Goodhue, 94 Ill. 47; Comm. v. Harkins, 128 Mass. 79; People v. Lorey, 229 Ill. 268; State v. Schild, 159 Mo. 130; State v. Crosswhite, 130 Mo. 358; State v. Dodson, 72 Mo. 283; State v. Bacon, 170 Mo. 161; State v. Kroeger, 47 Mo. 530. (6) It was erroneous in the trial to admit evidence of witnesses, testifying: a. That they had seen defendant at times without a horse and buggy. It was incompetent and of no probative effect, and yet liable to bias and prejudice the minds of the jurors. b. The issuance of other vouchers and warrants than those charged in the indictment, because it was not shown that these had been issued by reason of any false pretenses, similar to those charged in the indictment. c. The so-called confession of the defendant, because the corpus delicti had not been proven. d. The improper cross-examination of defendant, cross-examination being permitted on matters that had not been gone into on direct examination, and which was entirely foreign thereto. State v. Grant, 144 Mo. 56; State v. Hathorn, 166 Mo. 229; State v. Kyle, 177 Mo. 659; State v. McGraw, 74 Mo. 573; State v. Turner, 76 Mo. 350; State v. McLaughlin, 76 Mo. 320; State v. Hudspeth, 150 Mo. 31. (7) The instructions given by the court of its own instance, and at the defendant's request, were inconsistent and diametrically opposed to each other.

Elliott W. Major, Attorney-General, and Alex. Z. Patterson, Assistant Attorney-General, for the State.

(1) The second count of the indictment, upon which conviction was had, is predicated upon Sec. 4565, R.S. 1909, and charges with certainty every fact which is legally essential to constitute the crime of obtaining money by false pretenses. Appellant filed motion to quash the indictment, urging as the first and second ground of the motion the general grounds that each of the two counts failed to state any offense under the law and the Constitution and that each of said counts was too vague, indefinite and uncertain to fully inform the appellant of the offense charged. It was further urged in the motion to quash that each of said counts was bad because while they alleged that appellant was an inspector, "duly appointed and qualified and acting under and by virtue of the laws and ordinances of the city," they failed to properly plead such municipal laws and ordinances. It is further urged in appellant's motion to quash that while both counts of the indictment charged certain false and fraudulent representations made "to the city of St. Louis, its officers, agents and servants," the counts should have been more specific as to the names and positions of such agents and servants and should have showed that they had jurisdiction over the matters complained of. These special grounds of appellant's motion may be answered at once. First, the allegations complained of were matters of inducement solely, and as such it was unnecessary for the pleader to describe them with that degree of minuteness and particularity which is required in setting out the material allegations which constitute the offense charged. State v. Mayberry, 48 Me. 218; Com. v. Reynolds, 14 Gray (Mass.), 87; Rex v. Wade, 1 B. & Ad. 861; Mason v. State, 55 Ark. 529; Bishop's New Crim. Proc. (4 Ed.), secs. 555, 3; Kelley's Crim. Law and Prac., sec. 189; 22 Cyc. 300. Second, these facts were facts peculiarly within the knowledge of the accused, and it has been held that such facts may be averred generally. State v. McCormack, 2 Ind. 305; Rex v. Holland, 5 T. R. 607; 2 Hawkins, P. C. Co., 25; 22 Cyc. 306. It is sufficient to mention public officers as being such at the time without stating how they became such. Kelley's Crim. Law and Prac., sec. 189. (2) The motion for new trial alleges that the court erred in permitting the circuit attorney to go beyond the limits of the examination of appellant in chief, in his cross-examination. An examination of the record will show that appellant's direct examination amounted to a denial of the charge preferred and opened the subject of his guilt generally. The questions put to appellant in his examination in chief involved practically the whole issue tendered by the indictment, particularly the question, "Was there any time during that service that you didn't have a horse at your call and use?" Under these circumstances the State had the right to cross-examine him on these matters. Sec. 5242, R.S. 1909; State v. Miller, 190 Mo. 462; State v. Mitchell, 22 Mo. 683; State v. Keener, 225 Mo. 488; State v. Myers, 221 Mo. 598; State v. Miller, 156 Mo. 86. (3) The evidence was conclusive that appellant designedly, with intent to defraud, made the false pretenses alleged; that the city of St. Louis, through its officers, relied upon such pretenses and by reason thereof paid to appellant the sum of $ 20. All that is required is substantial evidence of guilt. The request to instruct an acquittal was properly denied. (4) Objection was made to the introduction of livery bills, bills for horseshoeing, vouchers and warrants, on the ground that such evidence related to matters other than those set out in the indictment. On a charge for obtaining goods by fraudulent or false pretenses, acts of the defendant similar to the one for which he is tried, done about or near the same time, are admissible to show the intent with which the act charged was done. State v. Sarony, 95 Mo. 349; State v. Meyers, 82 Mo. 558; State v. Boyne, 88 Mo. 604; State v. Cooper, 85 Mo. 256. (5) Complaint is made in the motion for new trial that the instructions given were erroneous. Instruction 1 requires the jury to find from the evidence every element of the offense before returning a verdict of guilty. The term "feloniously" was correctly defined. State v. Brooks, 92 Mo. 553. Instruction 2 properly limited the jury's consideration of the evidence of other false pretenses than those alleged to the showing of the intent with which appellant acted with respect to the property which is charged to have been obtained by false pretenses. Such instruction declared the law. State v. Sarony, 95 Mo. 349; State v. Meyers, 82 Mo. 558; State v. Byrne, 88 Mo. 604; State v. Cooper, 85 Mo. 256.

FARIS, J. Brown, P. J., and Walker, J., concur.

OPINION [153 S.W. 1011]

[247 Mo. 613] FARIS, J.

Defendant was convicted in the circuit court of the city of St. Louis on the second count of an indictment charging him with obtaining money from the city of St. Louis by certain false pretenses, and his punishment fixed by the verdict of a jury at imprisonment in the penitentiary for a term of two years. From the judgment and sentence imposed pursuant to said verdict, after the usual steps, he prosecutes this appeal.

The indictment against the defendant contains two counts, but the State having seen fit at some stage in the trial (but at what period is not clearly disclosed) to dismiss as to the first count, the same is not pertinent here, except insofar as it may incidentally bear upon matters of alleged error urged by defendant.

The second count, being that upon which the conviction was had, is as follows (caption omitted):

"And the grand jurors aforesaid, upon their oath aforesaid, further presentment make as follows:

"That Richard Foley on or about the thirteenth day of September, one thousand nine hundred and ten, at the city of St. Louis aforesaid, was an inspector of city lighting, duly appointed and qualified and acting under and by virtue of the laws and ordinances of the city of St. Louis, a municipal corporation; and that the said Richard Foley, inspector as aforesaid, on or about the said 30th day of September, 1910, at the city of St. Louis aforesaid, unlawfully and feloniously, [247 Mo. 614] knowingly and designedly, with the intent then and there to cheat and defraud the city of St. Louis, a municipal corporation as aforesaid, did falsely and fraudulently, represent, pretend and state to the said city of St. Louis, its officers, agents and servants, that he, the said Richard Foley, inspector as aforesaid, owned a horse and buggy and had used the same in the city service during the month of September, 1910; and that the said city of St. Louis was then and there justly indebted to him, the said Richard Foley, inspector as aforesaid, in the sum of twenty dollars for furnishing and keeping a horse and buggy, which he, the...