The State v. Wilson

• Decision Date: 23 November 1909
• Citation: 122 S.W. 701,223 Mo. 156
• Parties: THE STATE v. D. E. WILSON, Appellant
• Court: Missouri Supreme Court

122 S.W. 701

223 Mo. 156

THE STATE v. D. E. WILSON, Appellant

Supreme Court of Missouri, Second Division

November 23, 1909

Appeal from Texas Circuit Court. -- Hon. L. B. Woodside, Judge.

Affirmed.

Elliott W. Major, Attorney-General, and Charles G. Revelle, Assistant Attorney-General, for the State.

(1) Sec. 2213, R. S. 1899, upon which the information in this cause is predicated, is directed against the obtaining of money or property from a person whose confidence has first been secured by another by and through means of false and fraudulent representations and acts made and done with the intent to cheat and defraud. The series of representations and acts set out in this information bring this offense clearly within the class of cases defined by this section and such offense is a felony regardless of the value of the property so obtained. State v. Bayne, 88 Mo. 604; State v. Woodward, 156 Mo. 143; State v Jackson, 112 Mo. 585; State v. Pickett, 174 Mo 667; State v. Vandenberg, 159 Mo. 230. (a) The false and fraudulent representations, pretenses and statements, the acts and things constituting the trick and deception, and all the constituent elements of the offense are set out with particularity and precision and the information fully informs defendant of the nature and cause of the accusation. State v. Woodward, 156 Mo. 143; State v. Pickett, 174 Mo. 663; State v. Vandenberg, 159 Mo. 230; State v. Martin and Sneed, decided by this Court at the January call, but not yet officially reported. (b) The fact that defendant could have been prosecuted under other sections of the statute, fixing different punishments, does not preclude a prosecution under this section when the facts are sufficient to bring the offense within the class there condemned. State v. Porter, 75 Mo. 171; State v. Vandenberg, 159 Mo. 230; State v. Williams, 77 Mo. 310; State v. Beauchleigh, 92 Mo. 490. (2) During the progress of the trial defendant objected to the introduction of evidence tending to show that he had obtained money from other persons under the same and similar circumstances, and at about the same time and in the same section of country. For the purpose of showing the intent to cheat and defraud in the present case, this evidence was clearly competent, as has been uniformly held by this court. By an appropriate instruction the trial court specifically told the jury the sole purpose for which this evidence could be considered, and its effect was properly limited to the intent. This action on the part of the court was eminently proper. State v. Jackson, 112 Mo. 590; State v. Bayne, 88 Mo. 609; State v. Wilson, 143 Mo. 345; State v. Turley, 142 Mo. 411. (a) The objection "we object" is no objection and wholly insufficient. State v. Harlan, 130 Mo. 395; Rice v. Waddell, 168 Mo. 120; State v. Goforth, 136 Mo. 116; State v. Crone, 209 Mo. 330; State v. Page, 212 Mo. 239.

OPINION

FOX, J.

The defendant in this cause has brought this case to this court by appeal from a judgment of the circuit court of Texas county, Missouri, convicting him of obtaining fraudulently by means of a trick and deception, false and fraudulent representations the sum of $ 25 from one John H. Bauch. The amended information, which was duly verified, upon which the defendant was tried, was predicated upon the provisions of section 2213, Revised Statutes 1899. The sufficiency of the information was challenged in the trial court by a motion to quash, as well as in the motion in arrest of judgment, hence it is well to reproduce the information upon which the judgment in this cause is based. Omitting formal parts, it is as follows:

"John H. Sanks, prosecuting attorney, within and for the county of Texas and State of Missouri, upon his information and belief informs the court that D. E. Wilson on the 10th day of January, 1908, in the county of Texas and State of Missouri, then and there with intent unlawfully and feloniously to cheat and defraud one John H. Bauch, then and there unlawfully, knowingly and feloniously by use of a trick and deception and false and fraudulent representation, statement and pretense, did falsely and fraudulently represent and pretend to the said John H. Bauch that he, the said D. E. Wilson, was then and there the representative and authorized agent of the Pratt Food Co. of Philadelphia, Pennsylvania, a corporation duly incorporated and existing under the laws of the State of Pennsylvania, and that he, the said D. E. Wilson, had full right and authority from the said corporation, then and there to transact business for said corporation; to sell and contract for the sale of the goods and products of said corporation. And to furnish advertising matter to the dealers in said goods and products. That he, the said D. E. Wilson, was in the employ of said corporation and sent by the said corporation for the purpose of selling the goods and products of said corporation and furnishing and distributing the advertising matter of said corporation to dealers.

"And the said D. E. Wilson in pursuance of his purpose and intent to cheat and defraud the said John H. Bauch as aforesaid, did then and there as the agent and representative of said corporation, pretend to and did sell to the said John H. Bauch a bill of goods and products of the said corporation, and then and there take an order from the said John H. Bauch for advertising matter of the said corporation, advertising the goods and products of the same.

"Which order for said goods and advertising matter is in the words and figures as follows:

"'Order No. . . . Date . . . .

"'M . . . .

Ship to John M. Bauch

At Cabool, Mo.

How ship, Freight.

When, At once.

Terms, March 1st 60 days.

. . . .

"'1000 Letter heads

1000 Bill heads

1000 Statements

1000 Envelopes

500 Hand Books

Plenty of signs to tack upon counter

Plenty of large Litho signs.

1-2 bale 12-lb. sacks Stock Food

"'Printed like sample attached.

"'Ship at once.'

"And he, the said D. E. Wilson then and there represented to the said John H. Bauch, that he had expected to receive a draft or check from the said corporation to defray his traveling expenses as representative of the said corporation, but that said draft or check had not been received, that he, the said D. E. Wilson, was in need of money to defray said traveling expenses, and requested the said John H. Bauch to cash a draft of the said corporation for the sum of twenty-five dollars for the purpose of defraying said traveling expenses, which said draft he, the said D. E. Wilson then and there drew on said corporation, said draft being in the words and figures as follows:

$ 25.00 "'Cabool, Mo. 1-10-1908.

"'At sight pay to the order of John H. Bauch, Twenty-five dollars, value received, and charge the same to the account of D. E. Wilson.

"'To Pratt Food Co.

"'No. Phila. Pa.'

"Which said draft the Pratt Food Co. refused to honor and pay, but returned the same to the said John H. Bauch; and the said John H. Bauch believing the said false and fraudulent representations and statements and pretenses made as aforesaid by the said D. E. Wilson to be true, and being deceived thereby, was induced by reason thereof, and did then and there cash said draft, and in pursuance thereof, paid to the said D. E. Wilson the sum of twenty-five dollars, lawful money of the United States, of the value of twenty-five dollars; and the said D. E.Wilson by means and use of said trick, deception, false and fraudulent representations, statements and pretenses so made as aforesaid, then and there unlawfully, knowingly and feloniously, did obtain from him the said John H. Bauch the sum of twenty-five dollars, the money and property of the said John H. Bauch, with the intent then and there unlawfully and feloniously to cheat and defraud him, the said John H. Bauch, of the same.

"Whereas, in truth and in fact, the said D. E. Wilson did not have any right or authority then and there to transact business for said corporation, and was not then their representative or authorized agent of said corporation to sell and contract for the sale of the goods and products of the said corporation, or the furnishing of advertising matter to dealers for said corporation. That he was not employed in any manner by said corporation; and he, the said D. E. Wilson, well knew that he, the said D. E. Wilson, did not have any right or authority then and there to transact business for said corporation or to sell the goods and products of the same, or furnish dealers with advertising matter, advertising the business of said corporation, or to receive any draft or checks or money from the said corporation in any manner, to defray his traveling expenses; and he, the said D. E. Wilson, was not then and there or at any time sent by the said corporation to represent said corporation in any manner whatever, against the peace and dignity of the State."

Upon the overruling of the motion to quash this information the defendant was duly arraigned, entered a plea of not guilty and the trial proceeded. The testimony developed upon the trial of this cause tended substantially to establish the following state of facts:

That John H. Bauch, about January 10, 1908, and prior thereto, was engaged in the milling and mercantile business in the town of Cabool, in Texas county, Missouri, and handled, among other things, Pratt's Foods; that on the morning of January 10 1908, defendant went to Bauch's store and stated that his name was Wilson, and that he was the traveling salesman and representative of the Pratt Food Company. After inquiring of Bauch concerning his supply of such foods, defendant stated that his company, owing to the fierce competition it was then encountering, was preparing and furnishing...