The State v. Martin

• Decision Date: 15 March 1910
• Parties: THE STATE v. ALBERT MARTIN and WILLIAM SNEED, Appellants
• Court: Missouri Supreme Court

126 S.W. 442

226 Mo. 538

THE STATE v. ALBERT MARTIN and WILLIAM SNEED, Appellants

Supreme Court of Missouri, Second Division

March 15, 1910 ^[*]

Rehearing Denied 226 Mo. 538 at 550.

Appeal from Maries Circuit Court. -- Hon. Wm. H. Martin, Judge.

Affirmed.

Pope & Terrill, Jos. Crites and Watson & Holmes for appellant.

(1) We do not know of any section of the statutes under which the information could have been drafted except 1927 or 1930. The amount charged to have been obtained was less than $ 30 and could be no greater offense than petit larceny. R. S. 1899 sec. 1910; State v. Brossler, 139 Mo. 524; State v. Pickett, 174 Mo. 663; State v. Keyes, 196 Mo. 136; State v. Anderson, 186 Mo. 25. (2) The charge in the information is that defendants represented to W. D. Bull that James Denton was D. B. Wilcox, and thereby enabled Denton to procure fifteen dollars from Bull. The evidence is to the same effect. There is no evidence that defendants received any part of the money. Under the information and evidence no crime was proven against defendants and they should have been acquitted. State v Schaeffer, 89 Mo. 271; State v. Cameron, 117 Mo. 641; State v. Newell, 1 Mo. 248; State v. Evers, 49 Mo. 542; State v. Fraker, 148 Mo. 143; State v. Wilson, 143 Mo. 334; State v. Davis, 138 Mo. 107; State v. Lawrence, 178 Mo. 350; State v. Bohle, 182 Mo. 58. (3) This case does not come within the meaning of section 2213, R. S. 1899. State v. McChesney, 90 Mo. 120; State v. Cameron, 117 Mo. 641. (4) In this case the evidence disclosed the fact that Bull had been stealing timber from a tract of land known as the D. B. Wilcox tract, or had been charged with stealing timber from such tract, and the money paid was to prevent a prosecution therefor. Such being the case, instruction "C" should have been given.

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

(1) (a) The information is drawn under section 2213, R. S. 1899, and is not based on section 1927 or 1930. The defendants having violated one or more sections of the statute, with different punishments affixed, it does not lie in their mouths to say under which statute they shall be charged and tried. That is for the State to say. The information is sufficient. State v. Beaucleigh, 92 Mo. 490; State v. Williams, 77 Mo. 310; State v. Porter, 75 Mo. 171; State v. Williams, 12 Mo.App. 415; State v. McNerney, 118 Mo.App. 60. (b) The information sufficiently identified the name of the victim. State v. McChesney, 90 Mo. 120. And meets the objection contained in the following cases: State v. Pickett, 174 Mo. 663; State v. Hesseltine, 130 Mo. 468; State v. Clay, 100 Mo. 578; State v. Terry, 109 Mo. 601; State v. Janson, 80 Mo. 97. (c) Acts of a defendant similar to the one for which he is being tried, committed near the same time and at the same place, are admissible against him to show the intent with which the act charged was done. State v. Keyes, 196 Mo. 147; State v. Wilson, 143 Mo. 334; State v. Turley, 142 Mo. 403; State v. Sarony, 95 Mo. 352. (2) (a) The test is whether or not the defendant could plead in bar the judgment rendered against him, be it either a conviction or acquittal. State v. Woodward, 156 Mo. 147. All the elements necessary to charge the crime are laid in this information and the constitutional provision is complied with. Constitution, art. 2, sec. 22; State v. Vorback, 66 Mo. 168. And is unlike the cases of State v. Terry, 109 Mo. 601; State v. Benson, 110 Mo. 18; State v. Hubbard, 170 Mo. 346. (b) The assuming of a false name, or even a fictitious one may be a false pretense if thereby the fraud is accomplished. 2 Bishop's New Crim. Law, sec. 440, p. 254. The information in this case meets every requirement of the Constitution. It sets forth the exact nature of the false representations made by the defendant, minutely and in detail, and identifies the victim, and in every way describes the offense. State v. Cameron, 117 Mo. 376; State v. Fancher, 71 Mo. 460; State v. McChesney, 90 Mo. 120; State v. Horn, 93 Mo. 190; State v. Beaucleigh, 92 Mo. 490; State v. Connelly, 73 Mo. 235; State v. Crooker, 95 Mo. 389; State v. Terry, 109 Mo. 601; State v. Jackson, 112 Mo. 585; State v. Sarony, 95 Mo. 349. This was the same Albert Martin, the appellant. (3) Section 2533, R. S. 1899, is constitutional. State v. Schricker, 29 Mo. 265; R. S. 1899, sec. 2534. Variance between the pleading and proof will not operate as a reversal of the case. State v. Sharp, 71 Mo. 218; State v. Smith, 80 Mo. 520; State v. Harl, 137 Mo. 252. Variance, under the statute, is properly confided to the trial court. State v. Decker, 217 Mo. 320; State v. Hunible, 34 Mo.App. 347; State v. Black, 12 Mo.App. 534; State v. Stone, 15 Mo. 512; Weaver v. McElhenon, 13 Mo. 91; State v. Haveley, 21 Mo. 500; Rex v. Foster, 1 B. C. 412; State v. Riley, 100 Mo. 498; R. S. 1899, sec, 2535. (4) A variance is an essential difference between the pleading and the proof. There was no such difference between the charge in the information and the evidence in this case. Mulligan v. U.S. 120 F. 98; Skinner v. Grant, 12 Vt. 456. A party objecting to the variance between the pleadings and the proof must make his objection at the proper time during the trial, and if he does not do so, he cannot afterward avail himself of the objection. Kruger v. State, 135 Ind. 575; Graves v. State, 121 Ind. 357. A variance is understood to be a substantial departure from the issue in the evidence adduced, and must be in some matter in point of law essential to the charge or claim. 29 Am. and Eng. Ency. Law (2 Ed.), p. 580. Even a mistake in a verdict by writing the defendant's name "Farmness" instead of "Framness," was held to be immaterial. State v. Framness, 43 Minn. 490. We reassert the trial court settled the matter contained in appellant's motion for rehearing.

GANTT, P. J. Burgess and Fox, JJ., concur.

OPINION

GANTT, P. J.

This is an appeal from a conviction and sentence of the circuit court of Maries county. On the 5th of October, 1908, the prosecuting attorney of said county filed an amended information charging the defendants, together with James Denton and Lafayette Sneed, with the crime of obtaining money by means of false and fraudulent representations. The cause was dismissed as to Denton and Lafayette Sneed, and the defendants Albert Martin and William Sneed were found guilty and their punishment assessed at three years in the penitentiary. Inasmuch as one of the principal questions arising in the case is whether the information charges a felony or a misdemeanor, it will be necessary to set it forth. The information, omitting the caption, is in these words:

"Joseph W. Mosby, prosecuting attorney within and for the county of Maries in the State of Missouri, upon his oath of office informs the court that heretofore, to-wit, on or about the 9th day of November, 1907, and long prior thereto, at the county of Maries and State of Missouri, one D. B. Wilcox, was the owner of a certain tract of land situate, lying and being in said county of Maries in the State of Missouri, described as follows, to-wit:

"The west half of section twenty-eight, and the west half of the southeast quarter of section twenty-eight, the northwest quarter of section thirty-three, and the south half of section thirty-three, all in township thirty-nine of range ten.

"And that the said D. B. Wilcox, as the owner of said tract of land, was then and there entitled to have and receive from one W. D. Bull, a certain sum of money, to-wit, the sum of fifteen dollars, on account of and for timber which the said W. D. Bull had theretofore cut and removed from said tract of land, and that on the said 9th day of November, 1907, at the said county of Maries and State aforesaid, James S. Denton Albert Martin, William Sneed and Lafayette Sneed, with the intent then and there unlawfully and feloniously to cheat and defraud the said W. D. Bull, then and there unlawfully, knowingly and feloniously did falsely and fraudulently represent, state and pretend to the said W. D. Bull that the said James S. Denton was then and there the said D. B. Wilcox, the owner of the said described tract of land, and that he, the said James S. Denton, so falsely and fraudulently represented as the said D. B. Wilcox, as aforesaid, was then and there entitled to have and receive from the said W. D. Bull the said sum of fifteen dollars on account of and for timber which the said W. D. Bull had cut and removed from the said tract of land aforesaid, and that the said W. D. Bull believed said false and fraudulent representation, statements, and pretenses, so made as aforesaid by the said James S. Denton, Albert Martin, William Sneed and Lafayette Sneed, to be true, and being deceived thereby, was induced by reason thereof to then and there pay, and did pay, to said James S. Denton the said sum of money, to-wit, the sum of fifteen dollars, and that the said James Denton, Albert Martin, William Sneed and Lafayette Sneed by means and by use of the said false and fraudulent representations, statements and pretenses so made as aforesaid, then and there unlawfully, knowingly and feloniously did obtain from him, the said W. D. Bull, the said sum of fifteen dollars, in money of the value of fifteen dollars, the property and money of him, the said W. D. Bull then and there being, with the intent then and there unlawfully and feloniously to cheat and defraud him, the said W. D. Bull, of the same, whereas, in truth and in fact, the said James S. Denton, was not the said D. B. Wilcox, and was not the owner of the said described land, and the said James S. Denton, Albert Martin, William Sneed and Lafayette Sneed, or either of them, did not then and there...