The State v. Mullins
| Decision Date | 18 February 1922 |
| Citation | 237 S.W. 502,292 Mo. 44 |
| Parties | THE STATE v. WILL MULLINS, Appellant |
| Court | Missouri Supreme Court |
Appeal from Ozark Circuit Court. -- Hon. Fred Stewart, Judge.
Reversed.
G. W Rogers for appellant.
(1) The verdict is against the evidence and the court erred in overruling the demurrer to the evidence filed by defendant. (2) Regarding the representation that defendant had credit at the bank and the check would be paid when presented, there is no evidence that such representations were made unless there is an implied representation, as a matter of law, that the drawer of a check has the funds on deposit to pay the check when presented when he gives the check. There may be such an implied representation for the purpose of a civil suit but not for the purpose of a criminal prosecution. Maxey v State, 85 Ark. 499, 108 S.W. 1135.
Jesse W. Barrett, Attorney-General, and Albert Miller, Assistant Attorney-General, for respondent.
The court did not commit error in overruling appellant's demurrer to the evidence, and in submitting the case to the jury. The record discloses that there is substantial evidence upon which to submit the case to the jury. State v Loesch, 180 S.W. 875; State v. Foley, 247 Mo. 631; State v. Fields, 234 Mo. 627; State v. James, 216 Mo. 407; State v. Wooley, 215 Mo. 687; State v. King, 214 Mo. 390; State v. Stewart, 127 Mo. 293.
WHITE, C. Railey and Reeves, CC., concur.
The defendant was tried before a jury in the Circuit Court of Ozark County on a charge of obtaining property under false pretenses, on November 11, 1920, was found guilty, and his punishment assessed at two years' imprisonment in the State Penitentiary. He appealed in due form from the judgment thereupon rendered. The specific charge against the defendant is that he obtained from one W. H. Blunt three mules of the value of five hundred and ninety dollars, by means of a check of that amount drawn upon a bank in which he had no funds. W. H. Blunt and his wife lived on a farm about four miles and a half west of Gainesville in Ozark County. He handled stock and had mules for sale. Some time in April, 1920, while Blunt was away from home, the defendant appeared at his place for the purpose of buying mules and made a deal with Mrs. Florence Blunt, the wife of W. H. Blunt, who had authority to sell the mules. According to the story of Mrs. Blunt the defendant said he was buying mules; that he had been down in Big Bottoms and had taken ten head of mules to sell and had just got back. After some bargaining he reached an agreement with Mrs. Blunt whereby he was to buy three mules for five hundred and ninety dollars. One Newt Wilson, who was employed by Mr. Blunt at the time, was present. When the price was agreed upon he wrote a check for five hundred and ninety dollars, dated May 6, 1920, payable to W. H. Blunt, drawn on the Farmers & Merchants Bank of Mountain Home, Arkansas. Mrs. Blunt asked him if "we could cash the check here at Gainesville" and he said, "Yes, Ma'am, my cousin is cashier of the bank there [Mountain Home] and you can cash it anywhere."
That was on Thursday, according to the story of Mrs. Blunt. The Saturday following she went to Gainesville with the check and presented it to the Bank of Gainesville. The cashier, J. C. Harlin, declined to cash it, but said he would send it to Mountain Home. It appears that instead of doing so he took it there himself on the same day. When testifying he related how he went to the bank at Mountain Home and presented the check, and payment was refused. He was told that the defendant was in town at a certain livery stable. Harlin went to the livery stable, took the defendant aside and told him Mrs. Blunt wanted him to come down there and see if the check was good and if it wasn't he wanted to get the mules. Defendant said, "All right, the mules are here." He said the party who was expected to buy the mules wasn't there; that he had intended to sell the mules and put the money in the bank to pay the check. Harlin took the mules back, and they were turned over to Blunt Sunday morning.
Blunt testified that he met the defendant Monday morning in Gainesville; that defendant told him he had done wrong, but wanted to do what was right. He explained to Blunt that he had thought he could take the mules to Mountain Home, sell them and make a good profit on them, and have the money in the bank before the check got there. The check, however, was hurried there instead of taking the usual course. Defendant said if he had been let alone he would have sold the mules and would have had the money in the bank.
It was agreed then that the defendant would pay Blunt ten dollars and the expense he had incurred, and that would settle the matter. The defendant did not have the money with him, and asked Blunt to take a note. They agreed that defendant should give a mortgage on a pony and two cows to secure the amount agreed upon. The next day Blunt informed defendant that he had changed his mind; that he would not take a note. Afterwards, however, defendant gave him a note and subsequently paid it in full. Blunt filed his charge, and caused the defendant to be arrested on Saturday following the conversation on Monday. On this evidence the defendant was found guilty as stated above.
I. The precise false statements alleged to have been made by the defendant in the information are as follows:
(1) That the defendant, Will Mullins, was then in good and solvent circumstances;
(2) That the said Will Mullins was then a dealer in mules and made it a business to buy mules in the State of Missouri and sell same in the State of Arkansas;
(3) That he, the said Will Mullins, then had on deposit and had a credit in said bank (meaning the Farmers & Merchants Bank of Mountain Home) the sum of five hundred and ninety dollars;
(4) That said check and order for said sum of five hundred and ninety dollars would be paid by said bank when said check and order was presented;
(5) That a cousin of said Will Mullins was then a cashier of said bank.
The information alleges that those statements and representations were untrue and were believed by said Florence Blunt, and that she was thereby induced to deliver the mules in question in consideration of the delivery of said check. The information then sufficiently alleges the falsity of the said statements.
The court instructed the jury that if the said several false representations were made and that the said representations, or any one of them was untrue, and was known to the defendant to be untrue, then they might find the defendant guilty. The appellant did not object to this instruction, although its impropriety appears so plainly on its face. On that instruction the jury were authorized to find the defendant guilty if they should find that he said the check would be paid when presented, although they may not have found any other statement to be untrue. That statement was purely promissory in character and not the statement of a fact. While the defendant's counsel in its motion for new trial did not assign error to that instruction, he did assign as one of the errors that the court erred in failing to instruct on all the law of the case.
Section 4025, Revised Statutes 1919, requires that the court in the trial of a felony, "must instruct the jury in writing on all questions of law arising in the case which are necessary for their information in giving their verdict."
Here was a charge that the defendant had told Mrs. Blunt that the check which he gave her would be paid. It is apparent upon the face of the record and the evidence presented that this was the very statement upon which she relied in parting with the mules. The law is well settled upon that subject -- that a promissory statement does not come within the statute relating to false pretenses. The false pretense must be a misrepresentation of some fact. [State v. Petty, 119 Mo. 425, 24 S.W. 1010; State v. Young, 266 Mo. 723, 734, 183 S.W. 305; State v. Krouse, 171 Mo.App. 424, 156 S.W. 727.]
The court should have instructed the jury that they could not find the defendant guilty on a representation of that kind; they must find him guilty, if at all, upon misrepresentation of some existing fact. That was a question of law arising in the case upon which it was necessary to instruct, and the court committed reversible error in failing to instruct the jury in that regard. The point was saved in the motion for new trial.
II. The only evidence that the defendant stated he was a mule dealer and in the business of buying mules was the testimony of Mrs Blunt. She said the defendant told her that he was buying mules; that he had been down on the back bottoms and had taken ten head of mules down there...
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