The State v. Rosenheim

Decision Date16 April 1924
Docket Number24861
PartiesTHE STATE v. MILTON B. ROSENHEIM, Appellant
CourtMissouri Supreme Court

Appeal from St. Louis City Circuit Court; Hon. Franklin Miller, Judge.

Affirmed.

Bass & Bass and Edward E. Butler for appellant.

(1) The motion to quash or in arrest should have been sustained. (a) Because the indictment fails to state to whom the alleged false pretenses and fraudulent representations charged were made and addressed. The omission is fatal to the indictment. State v. Fraker, 148 Mo. 143, 160; State v Young, 266 Mo. 723, 730; State v. Small, 272 Mo. 507, 517; State v. Foley, 247 Mo. 607; State v. Turley, 142 Mo. 403; Bailey v. State, 159 Ala. 4; State v. Hulder, 78 Minn. 524. The failure to aver to whom the alleged false statements were made is a failure to plead a material matter, and nothing material can be taken by intendment or implication. State v Phelan, 159 Mo. 122. (b) Because the indictment fails to allege that the defendants "did falsely and fraudulently represent, pretend and state to the said city of St. Louis its officers, agents and servants." The precedents all show in express terms an allegation stating to whom the false statements and pretenses were made. State v. Foley, 247 Mo. 607; Kerr on Criminal Forms Adjudicated, pp. 710 to 755, 947 to 975; Kelly's Crim. Law (3 Ed.) sec. 692; State v. Smallwood, 68 Mo. 192; State v. Bradley, 68 Mo. 140. (c) Because inducing by false pretense payment to a third person is not within the statute, Sec. 3343, R. S. 1919. The charge herein attempted to be made is based upon Section 3343, R. S. 1919. "Obtain," as there used, means "to get possession of," "to have in possession," "to get" in the sense of "acquire," "to procure a delivery to one's self." To cause or induce one by means of false pretenses to wrongfully pay to a third person is not within the terms of the statute. A criminal statute must be strictly construed. There cannot be read into the statute what is not there. State v. McBrien, 265 Mo. 594; State v. Willard, 109 Mo. 242; 2 Russ. on Crimes, 618, note (d); 2 Roscoe's Crim. Evidence 649; Bates v. State, 124 Wis. 612; Comm. v. Schmunk, 207 Pa. St. 544; Jamison v. State, 37 Ark. 445; Connor v. State, 29 Fla. 455; State v. McGinnis, 71 Iowa 685; State v. Shaeffer, 89 Mo. 271. (d) Because the allegations of the indictment are inconsistent, repugnant, vague and uncertain, and the indictment does not apprise the defendant of the cause of the accusation against him by setting out the facts, but pleads a conclusion of law. Mo. Constitution, art. 2, sec. 22. Because the indictment does not allege in the charging part thereof that Milton B. Rosenheim "did" "make," "write" and "enter" in the book alleged to be kept by him the alleged false entries, feloniously, designedly, knowingly, or that he knew when he made them that they were false and untrue. State v. Young, 266 Mo. 723; State v. Muir, 186 S.W. 1047. Because the indictment fails to allege that the officers and agents of the city who were induced to deliver and pay over, and did deliver and pay over, to the St. Clair Coal & Mining Company three hundred and twenty-two dollars and sixteen cents of the money and property of the city, had legal authority and power to make payments on behalf of the city. State v. Lawrence, 178 Mo. 350; State v. Clay, 100 Mo. 571; People v. Wakely, 62 Mich. 297. Because the defendant Rosenheim, being a public officer or agent, could not be joined with the co-defendants, Frederick W. Kleine et al. United States v. McDonald, 3 Dillon, 543. (e) On the face of the indictment the defendant Rosenheim, if guilty of anything, is guilty of a misdemeanor and should have been so charged. The indictment charges the defendant, at the time of the commission of the offense alleged, with being a clerk and servant of the city, and as such alleged to have committed the offense charged. Therefore, he was only triable as for a misdemeanor, being guilty of and punishable for, if anything, in having committed a fraud in his official capacity. His offense is under special statutes. Secs. 3194, 3195, 3198, R. S. 1919; State v. Green, 87 Mo. 583; State v. O'Gorman, 68 Mo. 179; State v. Vasel, 47 Mo. 416. (f) The verdict is bad in form and substance, indefinite and uncertain and not responsive. State v. De Witt, 186 Mo. 61; State v. Rowe, 142 Mo. 439; State v. Pierce, 136 Mo. 34; State v. Miller, 255 Mo. 223. (2) The motion to discharge on the ground of variance or the motion to discharge in the nature of a demurrer, offered at the close of the State's case, should have been sustained. (a) Because the evidence shows that the officers and agents of the city of St. Louis did not deliver and pay over to the St. Clair Coal & Mining Company, a corporation, three hundred and twenty-two dollars and sixteen cents lawful money of the United States, as alleged, but to the contrary, the evidence establishes the fact that the payment alleged was made in orders or by checks on the city. This does not support the allegations in the indictment. State v. Peck, 253 S.W. 1019. (b) Because the evidence shows that the money alleged to have been paid over by the city of St. Louis, which is alleged to have been defrauded, by reason of the false pretenses, was not, in fact, paid by the city to the defendant, or "obtained" by him, but was, in fact, paid to and obtained by the Central National Bank, attorney in fact and assignee of the St. Clair Coal & Mining Company, a corporation. Sec. 3343, R. S. 1919; State v. Smalley, 252 S.W. 443; State v. Bowman, 247 S.W. 145; State v. McBrien, 265 Mo. 594; State v. Willard, 109 Mo. 242; State v. Morris, 230 Mo. 63.

Jesse W. Barrett, Attorney-General, for respondent; Ellison A. Poulton, of counsel.

(1) The motion to quash the indictment was properly overruled. (a) The indictment sufficiently charges the offense of obtaining money by false pretenses. Sec. 3343, R. S. Mo. 1919; State v. Foley, 247 Mo. 607, 628; State v. Shout, 263 Mo. 360, 367; State v. Loesch, 180 S.W. 875, 878. (b) A hard-and-fast form of indictment charging the obtaining of money by false pretenses, is not to be expected. State v. Foley, supra, l. c. 629. (c) The allegations "did falsely and fraudulently make, write and enter in said book kept for the city of St. Louis, and by said entries did then and there charge the said city" allege false and fraudulent representations to the city and its officers. (d) It is fundamental that all persons who act together with a common intent in the commission of a crime are equally guilty, and a crime so committed by two or more persons jointly is the act of all and of each one so acting. Therefore it is not necessary that the appellant here should have obtained the identical money the city parted with or that he be so charged. Appellant is liable on the theory of conspiracy. State v. Starr, 244 Mo. 161, 173. (e) Section 3343, R. S. 1919, covers the false pretenses of all persons, whether city officers, city employees, as defendant was, or private persons who run afoul of its denunciations. State v. Foley, supra, 629. (2) The motion to discharge on the ground of a variance and the demurrer to the evidence were properly overruled. (a) An allegation of obtaining money is sufficiently proved by showing that a check was given. State v. Bowman, 247 S.W. 145; State v. Chick, 282 Mo. 51, 65; State v. Foley, supra, 618. (b) A variance shall not be deemed ground for acquittal unless the trial court finds that it is material to the merits of the case and prejudicial to the defense of the defendant. Section 3907, R. S. 1919. Here the indictment charges the appellant and his co-indictees with causing the city to pay the coal company. The proof shows the city paid the assignee (attorney in fact) of the coal company on the coal company's order. (3) The verdict finds the appellant guilty as charged and assesses the punishment. This is sufficient. State v. Jordan, 225 S.W. 907; State v. Reich, 239 S.W. 837.

OPINION

Railey, C.

Appellant, Milton B. Rosenheim, together with Frederick W. Kleine, John M. Brichler and Edwin F. Kleine, were jointly charged with a felony, in an indictment, returned into the Circuit Court of the City of St. Louis, Missouri, on December 2, 1921, which will be considered hereafter. On April 10, 1922, the court, on application of appellant, ordered a severance, and that a separate trial be granted appellant. Thereafter, on the same day, he filed a motion to quash said indictment, which was overruled. He then waived a formal arraignment, and entered his plea of not guilty. On April 13, 1922, he filed a motion asking to be discharged, which was likewise overruled.

At the conclusion of the State's evidence, appellant interposed a demurrer thereto which was overruled. He also filed a motion, at the conclusion of the evidence, to compel the State to elect one of the transactions or alleged false entries between December 24, 1918, and the 10th day of January, 1919, on which it intended to proceed. This motion was likewise overruled.

The case was tried before a jury and, on April 13, 1922, the following verdict was returned:

"We the jury in the above entitled cause, find the defendant guilty of obtaining money by false pretenses, as charged in the indictment, and assess the punishment at imprisonment in the penitentiary for two years."

Motions for a new trial and in arrest of judgment were filed and overruled. Thereafter judgment was rendered and sentence pronounced in conformity to the verdict of the jury, and appellant was granted an appeal to this court.

There was substantial evidence on the part of the State tending to show that the city of St. Louis entered into an agreement and contract with the St. Clair Coal & Mining Company, an Illinois...

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