The State v. Roberts
| Decision Date | 05 March 1907 |
| Citation | 100 S.W. 484,201 Mo. 702 |
| Parties | THE STATE v. JOHN W. ROBERTS, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Criminal Court. -- Hon. John W. Wofford, Judge.
Reversed and remanded.
Reed Yates, Mastin & Howell and Burks Hamner for appellant.
(1) The court should have sustained defendant's demurrer to the information, and motion to quash. The information charges that the defendant did falsely, etc., pretend and say certain things alleged therein -- "by virtue of the premises to-wit:" and then specially sets forth the specific pretenses, which it does not allege were designedly feloniously and falsely made. The information charges that a false abstract was exhibited, but fails to charge that defendant designedly, feloniously and falsely pretended and said that it was true, etc. Nor does the information allege that the deed for the land was delivered to S. L. Tolly; the scienter is imperfectly alleged. Nor can the covenants of a warranty deed be the basis of an information for false pretenses. State v. Bradley, 68 Mo. 140; Kelley's Crim. Prac. (2 Ed.), 699, p. 481; State v. Janson, 80 Mo. 98; State v. Pickett, 174 Mo. 663; State v. Stowe, 132 Mo. 199; State v. Turley, 142 Mo. 403. (2) The court erred in giving instruction 1 on behalf of the State, in that the jury were instructed if they found that the defendant "either alone or acting in concert with another or others did then and there pretend and say to the said S. L. Tolly that the abstract was a full, true and correct statement of all conveyances from the United States patent to the date of June 15, 1904, in the county of Texas and State of Missouri affecting the title to said land so situate as aforesaid." In this instruction the court failed to instruct the jury that they must find that the defendant "did then and there designedly, feloniously and falsely pretend and say to the said S. L. Tolly." State v. Bradley, 68 Mo. 140; State v. Pickett, 174 Mo. 663. This instruction was copied from the information, without adapting its phraseology to the uses of an instruction. (3) Said instruction is further erroneous in that the jury were instructed that if they found that the defendant "did then and there designedly, feloniously and falsely pretend and say to the said S. L. Tolly that W. S. Gibbs was the owner of said real estate and had good right to sell the same and could pass good title thereto to said S. L. Tolly . . . by virtue of the premises, to-wit; and setting forth the statements that were alleged in the information, but not shown to have been made to Tolly, the same statements and premises being matters of statement of great length, and being construed in said instruction to be the same as the language above quoted from said instruction, and the jury not being required by said instruction to find that any of the matters designated in said premises were 'falsely, designedly and feloniously said and pretended by the defendant or others acting in concert with him.'" State v. Bradley, 68 Mo. 140; State v. Pickett, 174 Mo. 663; 3 Chitty, Crim. Law (2 Ed.), sec. 999. (4) Instruction 1 is of too great length, and the language thereof was calculated to confuse and mislead the jury. (5) The court erred in refusing to give instruction 1 on behalf of defendant -- it appearing by the evidence that the transaction between between Gibbs and Turner and Mrs. M. E. Coleman, the mother of the witness Elrod, occurred after the date of the transaction between Gibbs and Turner and the witness S. L. Tolly -- and the declarations of Gibbs and Turner as to the Elrod transaction were made after the transaction of Tolly had been concluded. Said instruction should have been given for the further reason that the declarations by which the Elrod sale was shown were made about a different transaction. (6) The declarations of Turner and Gibbs were wholly incompetent as against the defendant Roberts. No evidence was introduced by the State to show a conspiracy. State v. Daubert, 42 Mo. 239; State v. Walker, 98 Mo. 95; State v. Duncan, 64 Mo. 262; State v. Ross, 29 Mo. 32; State v. Boatright, 182 Mo. 33; State v. Kennedy, 177 Mo. 98. (7) The court erred in overruling defendant's objection to the admission of the declarations of Turner and Gibbs. The court stated in ruling on defendant's objections: "It isn't binding on him unless there is in the opinion of the jury -- and it is finally left to them -- a conspiracy proven." State v. Daubert, 42 Mo. 239; State v. Kennedy, 177 Mo. 98. (8) The court erred in admitting in evidence, over the objection of defendant, the warranty deed of Lou R. Cornell to Lena Tolly and S. L. Tolly, it not appearing that defendant made any statements in reference to said deed, and it not appearing by the declarations of Turner and Gibbs or otherwise that defendant knew of such a deed. The covenants of a warranty deed are not a basis for an information for false pretenses. State v. Chunn, 19 Mo. 233; State v. Evers, 49 Mo. 545. (9) There was no evidence tending to show a conspiracy between defendant and Turner and Gibbs. Defendant's instruction in the nature of demurrer to the evidence should have been given. State v. Daubert, 42 Mo. 239; State v. Ross, 29 Mo. 32; State v. Kennedy, 177 Mo. 98; (10) The court erred in refusing to permit defendant to show that the property was owned by Lena Tolly and not by S. L. Tolly, as alleged in the information. The defendant was entitled to prove this fact, and especially so in the light of the fact that the court instructed the jury on ownership. If Lena Tolly owned the goods, then there was a variance between the proof and information and defendant should have been discharged by the court. State v. Reynolds, 106 Mo. 146; Kelley's Crim. Pr., sec. 701, p. 481. (11) The court should have given defendant a reasonable time in which to meet the testimony of the witnesses Grant and Swinde. They were material witnesses indorsed on the information after the trial began. State v. Roy, 83 Mo. 268; State v. Nettles, 153 Mo. 464; State v. Henderson, 186 Mo. 473; State v. Bailey, 190 Mo. 257; State v. Barrington, 198 Mo. 23.
Herbert S. Hadley, Attorney-General, and Frank Blake, Assistant Attorney-General, for the State.
(1) The information is criticised by counsel for appellant. The criticism seems to be leveled against the use of the words "by virtue of the following premises, to-wit." The words "designedly, feloniously and falsely" are to be considered as running through all the allegations following the words "by virtue of the premises to-wit." The words "by virtue of the premises, to-wit," may be treated as surplusage. The fact that such words are inserted does not weaken or invalidate the information. The false pretenses were so numerous and the whole scheme was so complicated, that the prosecuting attorney could not have set them out with certainty and in the specific manner required by the law, without using words similar to the words "by virtue of the premises." The information is sufficient: the scienter is expressly averred in the last clause thereof. State v. Bradley, 68 Mo. 140; State v. Smallwood, 68 Mo. 192; State v. Willard, 109 Mo. 247; State v. Keyes, 196 Mo. 136; R. S. 1899, sec. 1927. (2) One who enters into a conspiracy is deemed in law a party to all acts done by any of the conspirators before or after he enters into such conspiracy, if such acts are in furtherance of the common design. State v. Walker, 98 Mo. 95; State v. Daubert, 42 Mo. 239; State v. Duncan, 64 Mo. 262; State v. Boatright, 182 Mo. 33. The rule requiring a foundation to be first laid, to establish primafacie the fact of conspiracy, before the declarations of one of the conspirators can be admitted, is not an inflexible rule. The order of proof and the conduct of the trial are matters within the discretion of the trial judge. State v. Rose, 29 Mo. 51; State v. Reed, 137 Mo. 134; State v. Vanderburg, 159 Mo. 238. (3) Counsel for appellant cite many authorities on the proposition that the acts or declarations of one conspirator made after the common enterprise is ended, are not admissible against the others, unless made in their presence. This rule is well settled, but it has no application to the case at bar. There was no declaration made by Gibbs and Turner after the enterprise was ended, admitted in evidence. The evidence appellant complains of was the declarations made by the defendant himself, and the rule invoked by counsel for appellant does not prevent the admission of statements and declarations made by the defendant himself after the enterprise is ended. The status of the defendant, as to his own admissions, is not altered by the above rule in reference to the inadmissibility of declarations of one conspirator against another conspirator. (4) In a prosecution for obtaining property by false pretenses, the acts of defendant similar to the one for which defendant is being tried, committed near the same time and in the same city, are admissible against him for the purpose of showing the intent with which the act charged was done. State v. Myers, 82 Mo. 558; State v. Bayne, 88 Mo. 604; State v. Wilson, 143 Mo. 334; State v. Rosenberg, 162 Mo. 358. (5) Complaint is made also because the names of Swinde and Grant were not indorsed upon the information until after the trial had begun. The rule seems to be that a witness may be examined on behalf of the State, although his name is not indorsed upon the indictment or information, but the State should not be permitted to purposely refrain from indorsing the names of material witnesses upon the information and then introduce them on the trial. The testimony of the witness named could not have amounted to a surprise, because the information alleged that the land in controversy was not...
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