The State v. Wilson

• Decision Date: 15 March 1898
• Parties: The State v. Wilson, Appellant
• Court: Missouri Supreme Court

44 S.W. 722

143 Mo. 334

The State v. Wilson, Appellant

Supreme Court of Missouri, Second Division

March 15, 1898

Appeal from Jackson Circuit Court. -- Hon. John W. Wofford, Judge.

Affirmed.

Stauber & Crandall, Henry Wollman, Alexander New and Isaac B Kimbrell for appellant.

(1) The indictment is defective: First. It does not aver that the "contract for the purchase" was made designedly and with intent to cheat and defraud. Second. It does not aver that defendants designedly and with intent to cheat and defraud agreed to pay cash on delivery. Third. It does not aver that defendants designedly and with intent to cheat and defraud obtained possession of the goods. Fourth. It utterly fails to charge that Stanton B. Willock then and there delivered the goods to the defendants in pursuance of said contract and because he believed in and relied upon defendant's agreement to pay cash upon delivery. Fifth. It does not aver that defendants designedly and with intent to cheat and defraud, transferred, secreted and disposed of the goods. Sixth. It does not aver that defendants unlawfully, feloniously and designedly, and with intent to cheat and defraud, failed to pay the said S. B. Willock. State v. Daggs, 106 Mo. 160; State v. Crooker, 95 Mo. 394; State v. Hayward, 83 Mo. 310; State v. Emerich, 87 Mo. 115. (2) Every felonious act must be charged to have been feloniously done. It should have been positively averred that the contract of purchase, agreement to pay cash on delivery, obtaining possession, selling transferring, and secreting, failing to pay and failing to satisfy, were each committed fraudulently, designedly feloniously, and with intent to defraud. In statutory offenses there must be an evil intent, though the statute is silent on the subject. Therefore, it was necessary to allege that "the failing to satisfy" was done designedly, feloniously, and with intent to cheat and defraud. State v. Reilly, 4 Mo.App. 397; State v. Davis, 29 Mo. 391; State v. Herrell, 97 Mo. 105; State v. Ross, 25 Mo. 426; State v. Feaster, 25 Mo. 324; State v. Emerich, 87 Mo. 116; State v. Evers, 49 Mo. 543; State v. Vorback, 66 Mo. 168; State v. Terry, 109 Mo. 601; State v. Saunders, 63 Mo. 482; State v. Bonnell, 46 Mo. 395. (3) The indictment is duplicitous. Two offenses which are essentially repugnant to and inconsistent with each other can not be joined in the same indictment, even in different counts. State v. Porter, 26 Mo. 206; State v. Rector, 11 Mo. 28; State v. Flint, 62 Mo. 394; State v. Bridges, 24 Mo. 253; 1 Bishop's Crim. Plead. and Prac., chap. 31; State v. Dennis, 80 Mo. 595; State v. Fitzsimons, 30 Mo. 237; 1 Archbold, Com. Plead. and Prac., pp. 95, 96; 1 Chitty Crim. Law, pp. 231 to 235; Wharton, Crim. Law, secs. 2087, 2116, 2118, 2121, 2122 and 204; Bishop on Stat. Crimes, 418, 421, 422; R. S. 1889, secs. 4103-4104; Com. v. Strain, 10 Met. 521. (4) The court erred in overruling defendant's objections to this question asked S. B. Willock, the prosecuting witness: "Q. What were the terms that you sold these goods? Objected to; objection overruled. A. It was cash; it was spot cash at my door. Q. To be paid on delivery? A. Yes, sir." The question calls for a mere conclusion. The answer shows furthermore that the witness had in mind the conversation between himself and defendant about the $ 1,100 car of eggs sold to the other parties. We say this for the purpose of showing the injury to defendant's cause of allowing the prosecuting witness to state a mere conclusion drawn from both negotiations between himself and defendant. (5) The court erred in admitting, over defendants' objections, the testimony of witnesses Brady, Hilt, Dunkeson, Phillips, Townsend, Bandy, Hamblin and Fudge. Their testimony did not prove that defendant bought goods from them, agreeing to pay cash upon delivery, but it did show that defendant owed them for goods and had not paid them, and in the light of the fact that the court refused to allow defendant to show his inability to pay, and the reason of his inability to pay, together with his good faith and honest intention in making purchases from them, the testimony was calculated to prejudice the jury against defendant. State v. Reilly, 4 Mo.App. 395; St. Louis Foundry v. Union Co., 3 Mo.App. 142. (6) The court erred in admitting any testimony as to a contract between Emmet H. Wilson and Willock. The indictment charged a joint contract made by Emmet H. Wilson and E. E. Wilson. "Where the petition declares on a joint contract of the defendants, it is incompetent to admit a contract which is only several." Davis & Rankin v. Mayesville Creamery, 63 Mo.App. 477; Gamble v. Kellam, 12 So. Rep. (Ala.) 82; Bank v. Campbell, 34 Mo.App. 45. (7) The court committed error in excluding the evidence, asked the defendant, a witness in his own behalf. The testimony went to the very essence of the crime charged -- the criminal intent. The testimony further showed that the bank received no orders not to honor defendant's check until the week following this transaction. It was strong evidence of defendant's good faith. There can be no crime without a criminal intent. State v. Reilly, 4 Mo.App. 392; State v. Porter, 67 Mo. 84. (8) It was error to sustain the State's objections to questions asked defendant and other witnesses as to his efforts to assist a committee of his creditors to stop the goods in transit, including the goods bought from Willock. While the goods were in transit defendant was "then and there selling, transferring and disposing of them." This had to be done designedly and with intent to cheat and defraud to constitute a felony. State v. Gabriel, 88 Mo. 639; Hunter v. State, 40 N. J. L. 405; State v. Hayden, 9 Rep. 237; State v. Mathews, 20 Mo. 56; State v. Graham, 46 Mo. 490.

Edward C. Crow, Attorney-General, Sam B. Jeffries, Assistant Attorney-General, and Marcy K. Brown, for the State.

(1) The indictment is correctly drawn, following the words of the statute as near as may be and fully informing defendant of the charge brought against him. McClain's Crim. Law, sec. 550. A fraudulent taking is a wrongful taking, and constitutes larceny. People v. Shaw, 57 Mich. 403; People v. Shipply, 86 N.Y. 375; People v. Hildebrand, 56 Me. 394; Wharton's Crim. Law, sec. 1865a. (2) No error was committed in admitting the testimony of witnesses Howe, Hilt, Dunkeson, Phillips, Townsend, Hamblin and Pudge. They testified that on the same day that the fraudulent contract was made with the prosecuting witness the defendant also made similar contracts with them. This evidence was admissible for the purpose of showing defendant's fraudulent intent. State v. Sarony, 95 Mo. 349; State v. Bayne, 88 Mo. 604; State v. Cooper, 85 Mo. 256; State v. Meyers, 82 Mo. 558. (3) The indictment is sufficient and in proper form. R. S. 1889, sec. 3564; Kelley's Crim. Law and Pr., sec. 692, p. 475. All the cases cited in appellant's brief are cases of obtaining property by false pretenses, where entirely different allegations are necessary, because entirely different principles prevail. State v. Madden, 81 Mo. 422; State v. Davis, 70 Mo. 467; State v. Roehm, 61 Mo. 82; State v. James, 63 Mo. 570; State v. Barr, 81 Mo. 118; State v. Stogsdale, 67 Mo. 630; State v. Tissing, 74 Mo. 72; State v. Anderson, 81 Mo. 78; State v. McDaniel, 40 Mo.App. 356. (4) The appellant's contention as to the admissibility of the telegram and letters from the Boston parties, and defendant's alleged course of dealing with them, is entirely untenable. That evidence was incompetent and immaterial from either the standpoint of the State or of the defendant. The State contended that the defendant promised to pay on delivery; the excluded evidence certainly threw no light on this issue. State v. Crosswhite, 130 Mo. 364.

Gantt, P. J. Sherwood and Burgess, JJ., concur.

OPINION

Gantt, P. J.

This is an appeal from the criminal court of Jackson county from a conviction under section 3564, Revised Statutes 1889, for fraudulently and feloniously obtaining merchandise under an agreement to be paid for on delivery and fraudulently selling and disposing of the same before paying or satisfying the owner therefor. There were three counts in the indictment, but as the State dismissed as to the second and third counts before or at the trial, the sufficiency of the second and third counts will not be noticed further.

The first count is in these words: "The grand jurors for the State of Missouri in and for the body of the county of Jackson upon their oath present that Emmet H. Wilson and E E. Wilson, whose Christian names in full are to these grand jurors unknown, late of the county aforesaid, on the 13th day of May, 1896, at the county of Jackson, State of Missouri, with felonious intent to cheat and defraud one Stanton B. Willock, fraudulently, unlawfully and feloniously did agree and contract with the said Stanton B. Willock (under the name of S. B. Willock) for the purchase of certain goods, wares and merchandise, to wit; three thousand dozens of eggs, of the value of two hundred and fifty-five dollars, at and for the price of two hundred and fifty-five dollars, to be paid for by the said Emmet H. Wilson and E. E. Wilson, in cash upon delivery of the said goods, wares and merchandise, before described, by the said Stanton B. Willock, to them, the said Emmet H. Wilson and E. E. Wilson, in the city of Kansas City, in Jackson county, Missouri; and that the said Emmet H. Wilson and E. E. Wilson, in pursuance of said fraudulent and felonious intent of them, the said Emmet H. Wilson and E. E. Wilson, to fraudulently and feloniously cheat and defraud the said Stanton B. Willock of the said goods, wares and merchandise, before described, the personal property of him, the said Stanton B. Willock,...