The State v. Lovan

• Decision Date: 13 November 1912
• Parties: THE STATE v. ERNEST LOVAN, Appellant
• Court: Missouri Supreme Court

151 S.W. 141

245 Mo. 516

THE STATE v. ERNEST LOVAN, Appellant

Supreme Court of Missouri, Second Division

November 13, 1912

Appeal from Jackson Criminal Court. -- Hon. E. E. Porterfield Judge.

Reversed and remanded.

Cooper & Wilson, Moore & Creel, and Wofford & Kimbrell for appellant.

(1) The information was drawn and the case was tried under the false pretense statute, Sec. 4565, R. S. 1909, as amended by Laws 1911, p. 195, and cannot now be shifted to the cheat-and-fraud statute, Sec. 4765. Instruction 1, given at the instance of the State, is erroneous for failing to instruct as for a misdemeanor in case the jury should have found the value of the livery stable stock to be less than thirty dollars. Sec. 4920, R. S. 1909; State v Marion, 235 Mo. 359. (2) The information is bad under Sec. 4565, R. S. 1909, for the reason that it does not charge the acts and representations complained of to have been done and made "designedly." State v. Puckett, 174 Mo 663; State v. Martin, 226 Mo. 538. (3) The information is bad under Sec. 4765, R. S. 1909, for the reason that it does not charge that Hannay "by means or by use of" the alleged misrepresentations, trick or deception was induced to assign, convey, transfer and deliver, and did then and there assign, convey, transfer and deliver to said Lovan all of said shares of stock. Sec. 4765, R. S. 1909; State v. Martin, 226 Mo. 538. (4) The information is bad under Sec. 4765, R. S. 1909, for the reason that the alleged trick, deception or false and fraudulent representations are not set forth in the information with particularity, so that the accused might be informed sufficiently of the cause and nature of the accusation. State v. McChesney, 90 Mo. 120; State v. Martin, 226 Mo. 538. (5) The information is bad for the reason that it does not charge that said Lovan falsely, fraudulently and feloniously offered and proposed to him, the said Hannay, that he, the said Lovan, would then and there trade, transfer and convey to him, the said Hannay, one-half of the capital stock of the Lovan Investment Company, and falsely, fraudulently and feloniously offered and proposed that said Lovan would then and there trade, transfer and convey to Hannay one-half of the real estate described. State v. Buchfelder, 231 Mo. 55; State v. Herrell, 97 Mo. 108. (6) Instruction 1, given by the court, on behalf of the State, is erroneous for the reason that it does not tell the jury what false representations the defendant is charged with, but refers the jury to the information for that purpose. State v. McCaskey, 104 Mo. 644; State v. Marion, 235 Mo. 359; State v. Steele, 226 Mo. 583. (7) Instruction 1 is erroneous for the reason that it assumes, and directs the jury, that Lovan and the Lovan Investment Co. were not the owners of the real estate described; assumes, and directs the jury, that said real estate was not free and clear of encumbrances; assumes, and directs the jury, that said real estate was mortgaged; assumes, and directs the jury that Lovan knew that said real estate was not free and clear; and assumes, and directs the jury, that Lovan knew it was mortgaged. State v. Steele, 226 Mo. 583. (8) The court erred in refusing to instruct the jury at the close of all the evidence to find the defendant not guilty for the reason that testimony that the defendant represented to Hannay that he owned, free and clear of encumbrance, "280 acres, Morgan County, Missouri," does not sustain or support, or tend to sustain or support, the allegation of the information that the defendant represented that he owned, free and clear of encumbrance, "the west one-half of the southeast quarter and the southeast quarter of the northeast quarter and the northeast quarter of the southeast quarter, all in section 10, township 40, range 19, containing 160 acres, and the east one-half of the northeast quarter of section 15, and the southeast quarter of the southeast quarter of section 10, township 40, range 19, containing 120 acres, all in Morgan County, Missouri," and the question is not a question of variance, but an absolute failure of proof. State v. Cook, 162 Ala. 90; State v. Scheib, 159 Mo. 142; State v. Plant, 209 Mo. 307; State v. Mispagel, 207 Mo. 557. (9) The court erred in excluding the testimony of J. J. Swofford on the point of his having had an agreement with the defendant that he would surrender the mortgage notes against the Morgan county land, which he held as collateral security. It was not necessary for defendant to make a formal offer to prove the agreement between him and Swofford in order to save the point here urged. The question was put in such form as to disclose its materiality. The exclusion of this testimony constitutes reversible error. Jackson v. Hardin, 83 Mo. 187; State v. Young, 119 Mo. 522. (10) The court erred in permitting the witness, Crauel, to relate before the jury his transaction with defendant about a $ 11,000 note in 1908, giving the jury the impression that defendant had obtained such note under false pretenses. This was a separate and distinct transaction and had no connection whatever with the charge in the information and the relation of the circumstance before the jury was highly improper and prejudicial to the defendant. The fact that the court, after the evidence was in, stated to the jury that the evidence was withdrawn from the consideration of the jury, did not cure the error. State v. Goetz, 34 Mo. 85; State v. Daubert, 42 Mo. 246; State v. Parker, 96 Mo. 389; State v. Spray, 174 Mo. 576; State v. Speyer, 207 Mo. 540; State v. Hyde, 234 Mo. 250. (11) The court committed error in permitting the cross-examination of defendant regarding matters to which he did not testify in chief. This was particularly prejudicial, because the cross-examination related to the transaction between defendant and Crauel in the year 1908, about a $ 11,000, note, it being the same transaction about which Crauel testified. It was not referred to in defendant's testimony in chief. It is reversible error to permit the cross-examination. Sec. 5242, R. S. 1909; State v. McGraw, 74 Mo. 573; State v. Porter, 75 Mo. 171; State v. Turner, 76 Mo. 350; State v. Patterson, 88 Mo. 88; State v. Chamberlain, 89 Mo. 129; State v. Brent, 100 Mo. 531.

Elliott W. Major, Attorney-General, and John M. Atkinson, Assistant Attorney-General, for the State.

(1) The information is good under Sec. 4565, R. S. 1909. It contains the substantial words of the statute, and fully sets forth the exact nature of the false representations made by the defendant. State v. Pickett, 174 Mo. 663; State v. Vandenburg, 159 Mo. 230. (2) Even if the information should be held bad under Sec. 4565, R. S. 1909, because of the omission of the word "designedly," it is good under Sec. 4765, R. S. 1909. State v. Martin, 226 Mo. 538; State v. Woodward, 156 Mo. 143; State v. Wilson, 223 Mo. 156. The acts and representations set out in the information bring this offense clearly within the class of cases defined by Sec. 4765, and the offense is a felony regardless of the value of the property obtained. State v. Bayne, 88 Mo. 604; State v Woodward, 156 Mo. 143; State v. Jackson, 112 Mo. 585; State v. Vandenburg, 159 Mo. 230. The false and fraudulent representations, pretenses and statements and all the constituent elements of the offense are set out with particularity and precision, and the information fully informs defendant of the nature and cause of the accusation. State v. Woodward, 156 Mo. 143; State v. Vandenburg, 159 Mo. 230; State v. Martin, 226 Mo. 538. (3) No error was committed in admitting in evidence the two warranty deeds from defendant and his wife to the Ernest Lovan Investment Company, conveying to the latter the 280 acres of land in Morgan county. These deeds were admissible for the purpose of identifying the 280 acres of land listed in the contract between defendant and the prosecuting witness, of date April 9, 1910. Nor was there error in admitting in evidence the two deeds of trust on the Morgan county land, held by Swofford. These deeds of trust were admissible for the purpose of showing that there were encumbrances on the Morgan county land at the time that defendant represented said land to be free and clear of encumbrance. (4) The court did not err in sustaining an objection of the State to the question asked by defendant of Swofford, the party who held the two notes and the deeds of trust on the Morgan county land. The question asked is as follows: "Did Mr. Lovan ever call to see you with reference to your surrendering those notes to him?" This testimony was wholly immaterial. There was no offer to show that defendant had any arrangement with Swofford by which he was to take up the notes, and even if there had been such an arrangement, it was not material to any issue in the case. (5) The court, on the objection of defendant, withdrew from the consideration of the jury all the evidence of Crauel, pertaining to the transaction had by him with defendant, and the court, further, by instruction 4, instructed the jury to wholly disregard all testimony stricken out of the record by the court, and that the jury must decide the case entirely upon the testimony admitted by the court. State v. Hopper, 71 Mo. 425; State v. Lett, 85 Mo. 52; State v. Fitzgerald, 130 Mo. 436; State v. Gartrell, 171 Mo. 511; State v. Church, 199 Mo. 638; State v. Barrington, 198 Mo. 23; State v. Turner, 76 Mo. 350. (6) The record shows that in all except two or three instances the court sustained the objections to the prosecuting attorney's cross-examination of the defendant; and these instances related to matters on which he had been examined in chief. State v. Worton, 139 Mo. 526; State v. Eisenhour, 132 Mo. 140; State v. Williams, 186 Mo. 128; State v....