The State v. Young

• Decision Date: 15 February 1916
• Parties: THE STATE v. WILLIAM YOUNG, Appellant
• Court: Missouri Supreme Court

183 S.W. 305

266 Mo. 723

THE STATE v. WILLIAM YOUNG, Appellant

Supreme Court of Missouri, Second Division

February 15, 1916

Appeal fro Callaway Circuit Court. -- Hon. David H. Harris, Judge.

Reversed and remanded.

J. R Baker for appellant.

John T Barker, Attorney-General, and Thomas J. Higgs, Assistant Attorney-General, for the State.

(1) The first count of the amended information upon which the prosecuting attorney elected to try the defendant, properly charges the offense of obtaining money under false pretenses. State v. Shout, 263 Mo. 360; State v Roberts, 201 Mo. 710; State v. Lovan, 245 Mo. 524; State v. Martin, 226 Mo. 547; State v. Donaldson, 243 Mo. 465; State v. Foley, 247 Mo. 607; Sec. 4565, R. S. 1909. (2) In a prosecution for obtaining money under false pretenses, evidence of similar transactions, whether prior to or subsequent to the one under review, is admissible as tending to prove a common intent of the defendant to cheat and defraud. State v. Roberts, 210 Mo. 726; State v. Wilkins, 221 Mo. 444; State v. Shout, 261 Mo. 360.

OPINION

FARIS, P. J.

The defendant was convicted in the circuit court of Callaway County for violating the provisions of section 4565, Revised Statutes 1909, as amended by the Laws of 1911. [Laws 1911, p. 194.] His punishment was fixed by the verdict of a jury at imprisonment in the penitentiary for a term of two years. From a sentence in accordance with the verdict, after the conventional motions, he has appealed.

The information is in two counts. The first count is bottomed as stated above, upon section 4565, and, caption and formal parts omitted, reads thus:

"N. T. Cave, Prosecuting Attorney within and for the body of the county of Callaway and State of Missouri, under his official oath and according to his best information, knowledge and belief, informs the court that one William Young, on the 16th day of April, 1914, at Callaway county, Missouri, feloniously, designedly and wilfully, with intent to cheat and defraud one I. L. Edwards, did falsely pretend to the said I. L. Edwards that he, William Young, had lawful money of the United States deposited to his credit in the 'Bank of Chamois,' a banking corporation duly corporated, organized and operating as such under the laws of the State of Missouri, and that said money was subject to be checked out of said bank, and that he had sufficient money deposited in said bank to purchase and pay for two mules of the value and purchase price of four hundred and seventy-five dollars, and the said William Young further falsely pretended and represented to the said I. L. Edwards that he, William Young, was the owner and operator of the largest general merchandise store in the town of Chamois, Missouri, and the said I. L. Edwards, believing the said false pretense, made as aforesaid, to be true, and being deceived thereby, was by reason thereof induced to and did then and there sell and deliver to the said William Young, two mules, the personal property of I. L. Edwards, for the purchase price of four hundred and seventy-five dollars, and the said William Young gave the said I. L. Edwards his, William Young's, personal check for the above amount drawn on the 'Bank of Chamois,' in payment for said mules and the said I. L. Edwards relying upon the statements so made by the said William Young, and believing them and each of them to be true, then and there accepted said check in payment of the purchase price of said mules and delivered the said mules to the said William Young, and the said I. L. Edwards presented the said check for payment at the 'Bank of Chamois,' Missouri, and the payment was refused because the said William Young had no funds in said bank, and the said William Young, by means of the said false pretenses so made to the said I. L. Edwards as aforesaid, unlawfully and designedly and feloniously did obtain of and from the said I. L. Edwards the possession of the said two mules of the value of four hundred and seventy-five dollars of the moneys and property of the said I. L. Edwards with intent, him, the said I. L. Edwards, then and there to cheat and defraud of the same; Whereas in truth and in fact the said William Young did not have any money in the 'Bank of Chamois,' as he well knew and did not own a large general merchandise store in the town of Chamois, Missouri, as he well knew; against the form of the statutes in such cases made and provided and against the peace and dignity of the State."

The second count is bottomed on section 4765, as amended by the Laws of 1913. [Laws 1913, p. 222.] Since the point is made that this joinder was improper, it may be stated that a motion to quash for alleged misjoinder was filed and overruled. Thereafter a motion to require the State to elect upon which count it would go to jury was filed. This motion seems to have been overruled, but at the close of all the evidence the State elected to go to the jury on the first count, which is set out above, and thereupon dismissed as to the second count. Therefore with the alleged misjoinder, barring the technical phase of vulnerability upon the motion to quash, we need no longer trouble ourselves.

Such of the evidentiary facts as were developed by the evidence runs briefly thus: Defendant appeared at the farm of one I. L. Edwards in Callaway County on the 16th day of April, 1914, and representing himself as the owner of the largest mercantile establishment in the town of Chamois and as such owner to be in need of and desirous of buying two mules for the purpose of hauling freight in and around the town of Chamois and for the purpose of advertising his business by the use of a pair of finely matched mules, agreed with said Edwards to buy the mules in question for the sum of $ 475. At the conclusion of the trade defendant asked Edwards for a blank check, and requested Edwards, on being furnished therewith, to fill out the same on the Bank of Chamois. Defendant signed the check and then inquired of Edwards when this check would get to the bank; whereupon Edwards inquired of him why he desired to know this and asked defendant whether or not he had the money there to pay the check. Defendant replied that he always had enough money there to pay $ 475, but that he had another deal in mind, and thereupon put his hand in his pocket and orally offered to show Edwards a draft for $ 1500, which, however, Edwards did not insist upon seeing. The proof shows that Edwards relied upon the statements of defendant in both of the behalves mentioned and thereupon accepted the check and delivered the mules to defendant. But as defendant desired Edwards to send the mules to Jefferson City, the latter paid a liveryman two dollars to take them to the Callaway County end of the bridge which spans the river at Jefferson City and turned them over to defendant.

The check given to Edwards for the mules was not paid when presented, for the reason that defendant had no money in the Bank of Chamois and had not had any therein for two months or more prior to the date at which the check was given, having, as the proof shows, closed his account in the Bank of Chamois on February 12, 1914. The evidence further discloses that defendant not only did not own the biggest mercantile business in Chamois, but at the date of obtaining the mules from Edwards had no store there at all. The proof shows that he had had, some few months prior, a small store in which he had a stock of secondhand clothing, but the proof is that he had closed this out some weeks before making the deal with Edwards. On this latter point in fairness, it may be said in passing, there was countervailing testimony, and the truth of it rests somewhat in the dark.

Defendant brought the mules to Jefferson City and upon reaching there began to make efforts to sell them, finally finding, in one Clem Ware, a purchaser for them on the day following the deal with Edwards at the price of $ 325.

The defense was (1) a denial of the alleged pretense as to the stupendous character of defendant's store at Chamois, and (2) that defendant informed Edwards at the time of giving him the check in question that he did not at that time have money enough in the Bank of Chamois to cover the check, but that he would have a sufficient sum therein to take care of the check by the time it reached the bank for payment. For this reason he says, he made inquiry of Edwards as to the time at which, in due course, this check would reach the Bank of Chamois for collection. This conversation is denied by Edwards. The question of the truth of this statement and whether defendant on the said 16th day of April, 1914, had any sort of mercantile business in the town of Chamois, form practically the only contested issues in this case. Touching other points required to be shown, there was either no contradiction or the truth thereof was conceded.

Upon the trial of the case the court gave, among others, instruction numbered one, the goodness of which is seriously questioned upon this record. This instruction is as follows:

"1. The court instructs the jury that if you find and believe from the evidence beyond a reasonable doubt that defendant William Young on or about the 16th day of April, 1914, at the county of Callaway and State of Missouri wilfully and feloniously and with intent to cheat and defraud, did obtain from one I. L. Edwards two mules of the value of four hundred and seventy-five dollars, or of any other value, then and there being the personal property of the said I. L. Edwards, by means of a check drawn, with intent to cheat and defraud him, the said I. L. Edwards, upon the Bank of Chamois, a bank in which he, the said William Young knew he had no funds, then you must find the defendant guilty as charged in the first count...