The State v. Lawrence

• Decision Date: 09 December 1903
• Citation: 77 S.W. 497,178 Mo. 350
• Parties: THE STATE v. LAWRENCE, Appellant
• Court: Missouri Supreme Court

77 S.W. 497

178 Mo. 350

THE STATE v. LAWRENCE, Appellant

Supreme Court of Missouri, Second Division

December 9, 1903

Appeal from Grundy Circuit Court. -- Hon. Paris C. Stepp, Judge.

Reversed.

F. B Ellis and C. A. Loomis for appellant.

(1) The court erred in admitting the evidence of C. D. Axtell, C. E Banta and Ed Urton. They could not issue, nor attempt to issue, a valid school warrant separate and apart from each other. They might bind themselves, but could not bind the district. In order to issue a valid school warrant, the board must meet and their proceedings must be made a matter of record. If their acts are separate and apart from each other their acts are void, and no warrant they might issue, or attempt to issue, could or did have any value. School District v. Smalley, 58 Mo.App. 658; Kane and Co. v. School District, 48 Mo.App. 414; Johnson v. School District, 67 Mo. 321. (2) School districts can not pledge the future credit of the district, nor contract a debt payable a year hence. That is just what they attempted to do in this case. This is in violation of section 12, article 10, of the Constitution of this State. Kane & Co. v. School Dist., supra; Bernard & Co. v. Knox County, 105 Mo. 382. (3) The directors of the school district did not purchase the goods because they relied on the representations that Lawrence was the agent of the State Board of Education, but they relied on his shipping the goods, or the Supplemental Book Company's agent, of which Tracey was manager. All the promises relied upon by the directors when they made the purchase, were to take place in the future. The essence of the crime of obtaining property by false pretenses is, that the false pretense should be of a past event, of a fact having a present existence, and not of something to happen in the future, and that the prosecutor believed them to be true, and that confiding in the truth, parted with his money or property. State v. DeLay, 93 Mo. 102; State v. Evers, 49 Mo. 542; State v. Petty, 119 Mo. 425. (4) It is not every representation or false statement and pretense that is within the statute. The law is not to protect or guarantee a person against irrational and foolish contract. State v. Barbee, 136 Mo. 440; State v. Cameron, 117 Mo. 641. (5) Whatever crime was committed in this case, as shown by the evidence, was complete. The defendant could not be convicted for an attempt. R. S. 1899, sec. 2361; State v. Chumley, 67 Mo. 41; State v. Lacy, 111 Mo. 513; State v. White, 35 Mo. 500. (6) The school directors could not have been deceived by the statement of defendant to the effect that he was agent for the State Board of Education. In the first place, the school law does not allow the State Superintendent of Schools to act as agent for the sale of school supplies. This he is prohibited from doing, under a very severe penalty. Sec. 9859, R. S. 1899. (7) The fifth instruction on the part of the State is undoubtedly bad. It tells the jury that if the defendant obtained money on a warrant which was void, and the district paid the warrant, then he was guilty. As to whether or not a warrant is bad, is not a question of fact, it is a question of law. Yet the jury were told that if they believed it was void, they could convict the defendant. But the jury were never told by the court what a school board was required to do to issue a valid warrant. Cassel v. Campbell, 110 Mo. 558; State v. Clay, 100 Mo. 572; Horton v. Tyre, 140 Mo. 253.

Edward C. Crow, Attorney-General, and Bruce Barnett for the State.

(1) That the defendant made an attempt to obtain a valid school warrant clearly appears from the evidence. It would be absurd to contend that defendant was employing his fraudulent methods for the purpose of obtaining an invalid warrant. (2) Appellant makes the contention and cites authorities in support thereof, that the warrant obtained by defendant was not valid, and therefore nothing of value was obtained. We do not feel called upon to dispute his proposition in this case, for the reason that the conviction was on the first count, which charges an attempt to obtain by false pretenses a school warrant of the value of $ 37.50. Defendant, therefore, stands acquitted of the charge of obtaining anything of value, and this verdict of the jury cures any errors the court may have committed in giving instructions authorizing a conviction on those counts of the information, which charges that the defendant obtained a warrant of the value of $ 37.50 by false pretenses. This court will not consider errors in instructions pertaining to any offense except the one of which there was a conviction. State v. Pitts, 156 Mo. 247; State v. John W. Moore, 156 Mo. 212; State v. Andrew, 76 Mo. 104; State v. Wilson, 98 Mo. 440; State v. Talbot, 73 Mo. 347; State v. Smith, 80 Mo. 576; State v. Dunn, 80 Mo. 681; State v. Eaton, 75 Mo. 591; State v. Stockwell, 106 Mo. 36. (3) Appellant contends that the conviction can not stand, because being on the first count of the information it is of an attempt to commit an offense, when the defendant succeeded in doing all he attempted to do, namely, to get possession of the warrant. The answer to this is that the defendant attempted to get valid warrant and failed, succeeding only in procuring an invalid one, and the jury so found. Appellant can not complain of the conviction on the ground that it was of an attempt instead of a successful commission, because he himself asked an instruction to that effect that the warrant obtained was invalid, and not a thing of value. While this instruction was refused by the court, it is to be presumed that it was because the court had already instructed the jury to exactly the same effect in instruction 10, given on the State's behalf. This instruction, authorizing the jury to find that the warrant was invalid and of no value, was followed up by the jury with a verdict that defendant had attempted to obtain a warrant of value, or in other words, had obtained an invalid or valueless one only, so that the court's instruction, together with the jury's verdict, show that defendant got what he asked for when he offered instruction 12. In other words, whatever errors the court may have committed, have been cured either by the jury or by the defendant. (4) (a) The fact that the directors of the school district may have relied partly on the defendant's statement that the books would be forwarded, does not alter the case, if they relied also on his false representations as to existing facts. State v. Vandenburg, 159 Mo. 230. (b) But the conviction being of an attempt only, it matters not whether the representations were relied upon or not.

OPINION

FOX, J.

The defendant was tried at the November term, 1902, in the Grundy Circuit Court upon an information in four counts.

The conviction was upon the first count, which charged the defendant with an attempt to obtain by false representations and pretenses a school warrant of the value of $ 37.50 from incorporated School District Number Eight, Township Sixty-one, Range Twenty-three, in Marion township, Grundy county, Missouri, and from C. D. Axtell, C. E. Banta and Ed Urton, the directors thereof.

In another count of the information defendant was charged with obtaining such school warrant by such false pretense.

The first count in the information, upon which defendant was convicted, omitting caption, is as follows:

"Comes now Hugh C. Smith, prosecuting attorney within and for Grundy county, Missouri, and on his oath of office informs the circuit court of Grundy county, Missouri, by this, his first amended information, that on or about the 26th day of January, A. D. 1901, at Grundy county, Missouri, one W. B Lawrence, then and there being, then and there with the intent then and there unlawfully and feloniously to cheat and defraud, then and there unlawfully, knowingly, designedly and feloniously did falsely, fraudulently, designedly and feloniously represent, state and pretend to C. D. Axtell, C. E. Banta and Ed Urton, then and there being and constituting the duly elected, qualified and acting board of directors of School District Number Eight, Township Sixty-one and Sixty-two, Range Twenty-three, in Marion township, Grundy county, Missouri, a corporation organized and existing under the laws of the State of Missouri, of which said board of directors, C. D. Axtell was president, and C. E. Banta, clerk, that the said W. B. Lawrence was then and there the duly authorized agent of the educational department of the State of Missouri to introduce, sell, deliver and receive payment therefor a certain set of books, known and designated as supplementary reading and reference books, and being fifty volumes in number, to the various school districts of the State of Missouri, and that he was sent out by the educational department of the State of Missouri for the purpose of introducing and placing a set of said books in each of the school districts of the State of Missouri. That the fifty volumes of books that he was selling and introducing as aforesaid, had been selected by W. T. Carrington, State Superintendent of Public Schools for the State of Missouri, and approved by the State Board of Education for the State of Missouri. That the said W. T. Carrington, State Superintendent of Public Schools of the State of Missouri, had recommended and urged the school districts all over the State of Missouri to buy said books. That the State Board of Education had made a contract with the Missouri Supplementary Book Company, to furnish to the various school districts of the State of Missouri said fifty volumes of books at very low prices for the purpose of introducing them in said school districts. That the sum of thirty-seven and fifty-hundredths dollars was said...