The State v. Keyes

• Decision Date: 22 May 1906
• Parties: THE STATE v. KEYES, Appellant
• Court: Missouri Supreme Court

93 S.W. 801

196 Mo. 136

THE STATE v. KEYES, Appellant

Supreme Court of Missouri, Division Two

May 22, 1906

Appeal from St. Louis City Circuit Court. -- Hon. Robt. M. Foster Judge.

Affirmed.

C Porter Johnson and James D. Simms for appellant.

(1) Where a party can reasonably under the circumstances protect himself from a false pretense, he should do so. Com. v Grady, 13 Bush (Ky.) 285; State v. Green, 7 Wis. 676; Buckalue v. State, 11 Tex.App. 352; Com. v. Gray, 76 Ky. 285; Com. v. Hutchinson, 2 Par. (Pa.) Sel. Eq. Cas. 309; Com. v. Haughty, 3 Metc. 223; State v. Young, 76 N.C. 258; State v. Norton, 11 Allen (Mass.) 266; Henshaw v. Bryant, 4 Scam. 109. (2) The instructions given by the court were erroneous. (a) The court did not properly define the offense of obtaining money or property by false pretenses. In fact it did not attempt to instruct the jury what the law is that the defendant is charged with having violated. (b) The court wholly failed to instruct the jury that any duty rested upon Perry to investigate the alleged representations claimed to have been made by the defendant, and especially if the means were at hand for Perry to have done so before the consummation of the alleged transaction. (c) The court instructed the jury that if either one or all of the alleged representations made by the defendant were relied on and believed to be true by the prosecuting witness, and he was deceived thereby and parted with his money and the checks and drafts mentioned, then the defendant should be convicted. It would seem unnecessary to point out the fallacy of this instruction. It is apparent at the most causal glance.

Herbert S. Hadley, Attorney-General, and Frank Blake, Assistant Attorney-General, for the State.

(1) The transaction was neither absurd nor irrational, neither did the prosecuting witness have the means at hand to detect the fraud. (2) Section 1927, Revised Statutes 1899, "was enacted to punish those who obtained or attempted to obtain from any other person his money, property or valuable thing, by means or by use of some one of the fraudulent devices enumerated in the act itself. The two essentials of the offense are, first, the obtaining or attempting to obtain goods or other valuable thing; and second, accomplishing it by some of the means denounced in the statute." State v. Willard, 109 Mo. 247; Watson v. People, 87 N.Y. 566; Clark & Marsh. on Crimes, pp. 831-833; State v. Janson, 80 Mo. 97; State v. Lichleter, 95 Mo. 402; State v. Vandenburg, 159 Mo. 230; State v. Hubbard, 170 Mo. 346. (3) It would be difficult to conceive of any definition of this crime which was not included in the first instruction given by the court. It has been decided that it is not necessary to define the term "false pretenses." State v. McChesney, 16 Mo.App. 269. (4) Another error assigned is the action of the court in instructing the jury that if either one or all of the alleged representations made by the defendant were relied upon and believed to be true, and he was deceived thereby, then the defendant should be convicted. This instrucion states the law as it has been announced in the following authorities: Kelley's Crim. Law & Prac., sec. 697, p. 480; State v. Vorback, 66 Mo. 172.

OPINION

FOX, J.

This cause is brought here upon appeal from a judgment of the circuit court of the city of St. Louis, convicting the defendant of obtaining money under false and fraudulent representations. The offense, omitting formal parts, is charged as follows by the circuit attorney of the city of St. Louis:

"Comes now Arthur N. Sager, circuit attorney within and for the city of St. Louis, said city of St. Louis being the eighth judicial district of the State of Missouri, and now here in court, upon his official oath, and on behalf of the State of Missouri, information makes, that Thomas P. Keyes, on or about the sixth day of July, one thousand nine hundred and four, at the city of St. Louis aforesaid, feloniously, designedly, knowingly and fraudulently, with the intent then and there to cheat and defraud one William Perry did falsely represent, pretend and state, to the said William Perry (that a certain corporation known and named the St. Louis Cement Brick Manufacturing Company, and incorporated and existing under the laws of the State of Missouri, then and there had a capital stock of fifty thousand dollars fully paid up); (that said corporation was then and there in good and solvent condition and circumstances, and doing a good business); (that said corporation, the St. Louis Cement Brick Manufacturing Company, had a brick-manufacturing plant, at which plant said corporation was then and there manufacturing fifty thousand brick per day by steam power), (and that he, the said Thomas P. Keyes, was then and there the owner of twenty certain shares of the capital stock of said corporation, and that the said twenty shares of stock were then and there of the value of two thousand dollars); and the said William Perry, believing the said false pretenses and representations so made by the said Thomas P. Keyes as aforesaid, to be true, and being deceived thereby, was induced by reason thereof to then and there pay, deliver and transfer to the said Thomas P. Keyes, two certificates of deposit dated June 21, 1904, issued to said William Perry by the Orion State Bank of Orion, Michigan, for the sum of five hundred dollars each, and of the value of one thousand dollars, and one promissory note made by the said William Perry, dated at St. Louis, on the 9th day of July, 1904, payable four months after date, for the sum of five hundred dollars and of the value of five hundred dollars, as and for part of the purchase price of said twenty shares of stock of the said St. Louis Cement Brick Manufacturing Company, and the said William Perry then and there did pay, deliver and transfer the said two certificates of deposit of five hundred dollars each, and said note for five hundred dollars to him, the said Thomas P. Keyes, as and for part of the purchase price of said twenty shares of stock; and the said Thomas P. Keyes then and there feloniously, willfully, designedly, knowingly and fraudulently, in the manner aforesaid, and by means of the fraudulent representations aforesaid, did obtain of and from the said William Perry the said two certificates of deposit for five hundred dollars made by said Orion State Bank, of the value of one thousand dollars, and the said promissory note of the value of five hundred dollars, all of the property of the said William Perry, with the intent him, the said William Perry, then and there to cheat and defraud of the same.

"Whereas, in truth and in fact, the said corporation, the St. Louis Cement Brick Manufacturing Company, did not then and there have a capital stock of fifty thousand dollars fully paid up, and was not then and there in good and solvent condition and circumstances and doing a good business; and whereas, in truth and in fact, the said corporation did not then and there have a brick manufacturing plant at which said corporation was then and there manufacturing fifty thousand brick per day by steam power; and whereas, in truth and in fact, the said twenty shares of stock, owned by the said Thomas P. Keyes, of the stock of the said St. Louis Cement Brick Manufacturing Company, were not then and there of the value of two thousand dollars, as he, the said Thomas P. Keyes, then and there well knew; contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State."

The facts as developed at the trial were substantially the following: That William Perry, a farmer from Michigan, went to St. Louis on the 24th day of June, 1904, and having some money to invest, on July 5, 1904, bought an interest in a real estate firm at 801 Chestnut street. The defendant was not connected with such real estate firm, but he had an office in the same room, and in this way Perry got acquainted with him. Perry first had a conversation with the defendant on July 9th about the St. Louis Brick Manufacturing Company a corporation in which the defendant was interested, and the defendant wanted Perry to buy an interest in the brick company which the defendant said was located in St. Louis, Missouri. The defendant had a lot of sample brick in the office, which he claimed were made at the brick factory, and the defendant told Perry that the company was operating a factory by steam power and making fifty thousand brick per day; that the company had a paid up capital of $ 50,000; that the defendant was the overseer of the factory, and he offered to sell Perry twenty shares of the capital stock for $ 2,000. He told Perry the stock would pay 15 per cent on the money invested, and that the company was a good paying company and that stock was worth 100 cents on the dollar. Relying upon these statements, the prosecuting witness Perry entered into a contract with the defendant for $ 2,000 worth of stock, which was to be turned over to Perry as soon as the money was paid. Perry did not go out to look at the factory before he contracted for the stock, but on July 9, and before contracting for it, he said to the defendant: "Let's go out and look at the factory," and the defendant said, "They have broken down and won't be running until Monday, right there lies the iron off the engine," and the defendant pointed to a piece of iron lying there in the office. On July 9, 1904, Perry gave the defendant $ 1,000 in checks on the Orion Michigan State Bank, and saw the cashier at a St. Louis bank cash these checks and pay the money to defendant. Perry also gave the defendant $ 500 in real estate, and also a note for $ 500 payable in four months, which note was paid in full, $ 250 on the 2nd day of August,...