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    THE STATE v. KEYES, Appellant.
    Division Two,
    May 22, 1906.
    1. OBTAINING MONEY BY FALSE PRETENSES: Failure to Investigate: No Excuse. Where false and fraudulent representations are calculated to deceive the person to -whom they were made, and are not absurd or irrational, and the party relying upon them has not the means at hand at the time to detect their falsity, the failure of such party to make an investigation to ascertain the truth or falsity of the representations constitutes no defense to the party making them.
    2. -: Sufficiency of Evidence. Evidence held sufficient to support the verdict finding defendant guilty of obtaining money and property by means of false and fraudulent representations.
    3. -: Instruction. An instruction, numbered one, set out in the statement, held to state every essential fact necessary to constitute the offense of obtaining money or property under false pretense.
    4. -: -: Province of Court and Jury. It is the province of the jury to determine whether or not the false representations as charged were made. But whether the representations are absurd or irrational, and whether the party relying upon them should have made an investigation as to their truth or falsity, are legal questions for the determination of the court; and, therefore, the court did not err in not submitting such questions to the jury.
    5. -: Charging Several Pretenses: Proof of One. In a prosecution for obtaining money or property under false pretenses, when several such pretenses are charged, the proof of any one will sustain the charge; and an instruction which so declares is not erroneous.
    Appeal from St. Louis City Circuit Court.—Uo». Robt. M. Foster, Judge.
    Affirmed.

      G. Porter Johnson and James D. Simms for appellant.
    (1) Where a party can reasonably under the circumstances protect himself from a false pretense, be should do so. Com. v. Grady, 13 Bush (Ky.) 285; State v. Green, 7 Wis. 676; Buckalue v. State, 11 Tex. App. 352; Com. v. Gray, 76 Ky. 285; Com. v. Hutchinson, 2 Par. (Pa.) Sel. Eq. Cas. 309; Com. v. Haughty, 3 Mete. 223; State v. Young, 76 1ST. C. 258; State v. Norton, 11 Allen (Mass.) 266; Henshaw v. Bryant, 4 Scam. 109. (2) The instructions given by the court were erroneous, (a) The court did not properly define the offense of obtaining money or property by false pretenses. In fact it did not attempt to instruct the jury what the law is that the defendant is charged with having violated, (b) The court wholly failed to instruct the jury that any duty rested upon Perry to investigate the alleged representations claimed to have been made by the defendant, and especially if the means were at hand for Perry to have done so before the consummation of the alleged transaction, (c) The court instructed the jury that if either one or all of the alleged representations made by the defendant were relied on and believed to be true by the prosecuting witness, and he was deceived thereby and parted with his money and the checks and drafts mentioned, then the defendant should be convicted. It would seem unnecessary to point out the fallacy of this instruction. It is apparent at the most causal glance.

      Herbert 8. Hadley, Attorney-General, and Frank Blake, Assistant Attorney-General, for the State.
    (1) The transaction was neither absurd nor irrational, neither did the prosecuting witness have the means at hand to detect the fraud. (2) Section 1927, Revised Statutes 1899, “was enacted to punish those who obtained or attempted to obtain from any other person his money, property or valuable thing, by means or by use of some one of the fraudulent devices enumerated in the act itself. The two essentials of the offense are, first, the obtaining or attempting to obtain goods or other valuable thing; and second, accomplishing it by some of the means denounced in the statute.” State v. Willard, 109 Mo. 247; Watson v. People, 87 N. Y. 566; Clark & Marsh, on Crimes, pp. 831-833; State v. Janson, 80 Mo. 97; State v. Lichleter, 95 Mo. 402; State v. Vandenburg, 159 Mo. 230; State v. Hubbard, 170 Mo. 346. (3) It would be difficult to conceive of any definition of this crime which was not included in the first instruction given by the court. It has been decided that it is not necessary to define the term “false pretenses.” State v. McChesney, 16 Mo. App. 269. (4) Another error assigned is the action of the court in instructing the jury that if either one or all of the alleged representations made by the defendant were relied upon and believed to be true, and he was deceived thereby, then the defendant should be convicted. This instrucion states the law as it has been announced in the following authorities: Kelley’s Crim. Law & Prac., sec. 697, p. 480; State v. Yorback, 66 Mo. 172.
   FOX, J.

This cause is brought here upon appeal from a judgment of the circuit court of the city of St. Louis, convicting the defendant of obtaining money under false and fraudulent representations. The offense, omitting formal parts, is charged as follows by the circuit attorney of the city of St. Louis:

‘ Comes now Arthur N. Sager, circuit attorney within and for the city of St. Louis, said city of St. Louis being the eighth judicial district of the State of Missouri, and now here in court, upon his official oath, and on behalf of the State of Missouri, information makes, that Thomas P. Keyes, on or about the sixth day of July, one thousand nine hundred and four, at the city of St. Louis aforesaid, feloniously, designedly, knowingly and fraudulently, with the intent then and there to cheat and defraud one William Perry did falsely represent, pretend and state, to the said William Perry (that a certain corporation known and named the St. Louis Cement Brick Manufacturing Company, and incorporated and existing under the laws of the State of Missouri, then and there had a capital stock of fifty thousand dollars fully paid up); (that said corporation was then and there in good and solvent condition and circumstances, and doing a good business); (that said corporation, the St. Louis Cement Brick Manufacturing Company, had a brick-manufacturing plant, at which plant said corporation was then and there manufacturing fifty thousand brick per day by steam power),(and that he, the said Thomas P. Keyes, was then and there the owner of twenty certain shares of the capital stock of said corporation, and that the said twenty shares of stock were then and there of the value of two thousand dollars); and the said William Perry, believing the said false pretenses and representations so made by the said Thomas P. Keyes as aforesaid, to be true, and being deceived thereby, was induced -by reason thereof to then and there pay, deliver and transfer to the said Thomas P. Keyes, two certificates of deposit dated June 21, 1904, issued to said William Perry by the Orion State Bank of Orion, Michigan, for the sum of five hundred dollars each, and of the value of one thousand dollars, and one promissory note made by the said William Perry, dated at St. Louis, on the 9th day of July, 1904, payable four months after date, for the sum of five hundred dollars and of the value of five hundred dollars, as and for part of the purchase price of said twenty shares of stock of the said St. Louis Cement Brick Manufacturing Company, and the said William Perry then and there did pay, deliver and transfer the said two certificates of deposit of five hundred dollars each, and said note for five hundred dollars to him, the said Thomas P. Keyes, as and for part of the purchase price of said twenty shares of stock; and the said Thomas P. Keyes then and there feloniously, willfully, designedly, knowingly and fraudulently, in the manner aforesaid, and by means of the fraudulent representations aforesaid, did obtain of and from the said William Perry the said two certificates of deposit for five hundred dollars made by said Orion State Bank, of the value of one thousand dollars, and the said promissory note of the value of five hundred dollars, all of the property of the said William Perry, with the intent him, the said William Perry, then and there to cheat and defraud of the same.
“Whereas, in truth and in fact, the said corporation, the St. Louis Cement Brick Manufacturing Company, did not then and there have a capital stock of fifty thousand dollars fully paid up, and was not then and there in good and solvent condition and circumstances and doing a good business; and whereas, in truth and in fact, the said corporation did not then and there have a brick manufacturing plant at which said corporation was then and there manufacturing fifty thousand brick per day by steam power; and whereas, in truth and in fact, the said twenty shares of stock, owned by the said Thomas P. Keyes, of the stock of the said St. Louis Cement Brick Manufacturing Company, were not then and there of the value of two thousand dollars, as he, the said Thomas P. Keyes, then and there well knew; contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State.”

The facts as developed at the trial were substantially the following: That William Perry, a farmer from Michigan, went to St. Louis on the 24th day of June, 1904, and having some money to invest, on July 5, 1904, bought an interest in a real estate firm at 801 Chestnut street. The defendant was not connected with such real estate firm, but he had an office in the same room, and in this way Perry got acquainted with him. Perry first had a conversation with the defendant on July 9th about the St. Louis Brick Manufacturing Company, a corporation in which the defendant was interested, and the defendant wanted Perry to buy an interest in the brick company which the defendant said was located in St. Lonis, Missouri. The defendant had a lot of sample brick in the office, which he claimed were made at the brick factory, and the defendant told Perry that the company was Operating a factory by steam power and making fifty thousand brick per day; that the company had a paid up capital of $50,000; that the defendant was the overseer of the factory, and he offered to sell Perry twenty shares of the capital stock for $2,000. He told Perry the stock would pay 15' per cent on the money invested, and that the company was a good paying company and that stock was worth 100 cents on the dollar. Relying upon these statements, the prosecuting witness Perry entered into a contract with the defendant for $2,000 worth of stock, which was to be turned over to Perry as soon as the money was paid. Perry did not go out to look at the factory before he contracted for the stock, but on July 9, and before contracting for it, he said to the defendant: “Let’s go out and look at the factory,” and the defendant said, “They have broken down and won’t be running until Monday, right there lies the iron off the engine,” and the defendant pointed to a piece of iron lying there in the office. On July 9, 1904, Perry gave the defendant $1,000 in checks on the Orion Michigan State Bank, and saw the cashier at a St. Louis bank cash these checks and pay the money to defendant. Perry also gave the defendant $500 in real estate, and also a note for $500 payable in four months, which note was paid in full, $250 on the 2nd day of August, and $250 on the 4th day of August, 1904. On the 21st day of July the defendant gave Perry the stock in the brick company. Afterwards Perry.learned that there was no brick factory manufacturing fifty thousand brick a day, and the defendant told Perry that he did not have any steam brick plant. There was a little machine over at 1120 Chestnut street, operated by hand power, not steam power, with a capacity of five or six hundred brick per day. After the prosecuting witness found that there was no steam factory, the defendant told him that they were going to build a factory as soon as they could get a railroad switch track in at Manchester and Theresa avenues, where the company had a lease on a piece of land. Perry went out there one day with the defendant and there were no buildings on the land.

On July 9th, and before putting any money in the concern, Perry went to Bradstreet’s to find out the standing of the corporation. Bradstreet said they did not think he had any brick factory at all. Perry went back and told the defendant what Bradstreet had said and the defendant again stated that he had a steam power factory, and said: “Right there lies the iron from off the engine now.”

The secretary of this corporation testified that on the 9th day of July, 1904, the company was in debt considerably, about $1,150, and at that time the company had no plant in St. Louis manufacturing brick at the rate of fifty thousand per day by steam power; that the defendant, on July 7,1904, had told the witness that the company was in debt; that there was only a small hand press at 1120 Chestnut street with a capacity of about five hundred sample brick per day. Witness stated that on the 9th day of July, 1904, the stock of the concern had no market value. The company was in•corporated under the Missouri laws for $50,000, but a patent which the defendant owned, containing a formula for the manufacture of the cement brick, was put in for $48,900 and $1,000 in cash was paid by A. J. Maurer, and the other $100 was not shown. The witness stated that the patent had no value whatever.

Witness Bergfeld testified that in May, 1904, he paid the defendant Keyes $500 for worthless stock in the same corporation upon representations somewhat similar to the ones made to the witness Perry.

Upon the close of the State’s case, the defendant asked for an instruction in the nature of a demurrer to the testimony, directing the jury under the law to find the defendant not guilty. This instruction the court refused to give.

The defense, by way of showing the solvency of the corporation, offered evidence showing that the defendant, on behalf of the St. Louis Cement Brick Manufacturing Company, had opened negotiations with the Terminal railroad for the location of a switch track near the Collier shot tower, which property the company was figuring on leasing.. These negotiations fell through because the switch was not put in. After-wards, and on April 19, 1904, the property at Manchester and Theresa avenues was leased for ten years to the St. Louis Cement Brick Manufacturing Company, the negotiations for such lease being carried on by William Korchoff, the president of the company, and the defendant, Keyes, an officer of that company. This lease, however, was in operation but a few months on account of the failure of the corporation to pay the monthly rent provided for therein.

Witness Robert M. Noonan, a real estate agent, who represented the owner of the property leased, testified that this lease was worth $15,000 in July, 1904, and although the entire ten years rental of the leased property was less than $15,000, witness thought that the lease was worth $15,000 if the land was handled and improved properly. Witness said that he did not think the vacant ground was worth anything, unless the lessee had some plans for the future to improve it, but if it was properly improved, it would be worth $15,000.

James T. Smith, a contractor and builder, testified that he had used seven or eight thousand of the brick manufactured by the St. Louis Cement Brick Manufacturing Company in constructing buildings in ,St. Louis, and that he bought them from the defendant Keyes, paying $15 per thousand for them; that the brick used were good brick, standing the highest test, which was made by a Washington University engineer. "Witness stated that defendant did not have any steam factory, bnt only a hand machine; he supposed that the brick he used came from the defendant’s factory, although he did not see the brick taken from the company’s place at 11th and Chestnut streets, but the brick he used were brick similar to those he saw manufactured there on the hand machine.

James L. Hopkins, a patent attorney, testified that he performed the work of incorporating the St. Louis Cement Brick Manufacturing Company, the defendant being one of the incorporators. Defendant had good title to the patent for making the brick, which was assigned to the corporation. The corporation was organized with a fully paid up capital stock on the strength of this patent. Witness thought that a conservative value of the patent, subject, of course, to the proper commercial handling of the institution that was operating it, would be not less than $100,000, although the patent had only four years more to run. On cross-examination the witness stated that he did not know whether this patented formula had been improved or not since it had been issued, but did not know that there were many other patents in this art.

At the close of all the evidence the court instructed the jury as follows:

“Gentlemen of the Jury:
“By the information herein, which was filed in this .court on the 15th day of March, 1905, the defendant, Thomas P. Keyes, is charged with the offense of obtaining money by false representations and pretenses. He pleads not guilty, and upon the question of his guilt or innocence the court instructs you as follows:
“1. If you believe and find from, the evidence, under these instructions, that at the city of St. Louis and the State of Missouri, on or about the 9th day of July, 1904, or at any time within three years next before the filing of the information herein, the defendant, Thomas P. Keyes, with intent to cheat and defraud one Williaxn Perry, knowingly, designedly and falsely, did state, pretend and represent to the said William Perry that a certain corporation known and named the St. Lonis Cement Brick Manufacturing Company, and incorporated and existing under the laws of the State of Missouri, then and there had a capital stock of $50,000 fully paid up; that said corporation was then and there in good and solvent condition and circumstances and doing a good business; that said corporation, the St. Louis Cement Brick Manufacturing Company, had a brick manufacturing plant, at which plant said corporation was then and there manufacturing fifty thousand brick per day by steam power; that the said Thomas P. Keyes was then and there the owner of twenty shares of the capital stock of said corporation, and that the said twenty shares of stock were then and there of the value of two thousand dollars, or either one or all of said representations; and if you further find from the evidence that such false statements, pretenses and representations, or either of them, so made by the defendant aforesaid, were relied on and believed to be true by the said William Perry and he was deceived thereby, and then and there and thereby unlawfully and fraudulently induced to pay, deliver and transfer to the said Thomas P. Keyes two certificates of deposit, dated June 21, 1904, issued to the said William Perry by the Orion State Bank of Orion, Michigan, for the sum of $500 each, and of the value of $1,000, and one certain promissory note made by the said William Perry, dated at St. Louis on the 9th of July, 1904, payable four months after date, for the sum of $500', and of the value of $500, as and for part purchase price of said shares of stock of the said St. Louis Cement Brick Manufacturing Company, and that the said money so paid over and delivered to the defendant was of the value of $30 or more, and was the money and property of the said William Perry; and you further find from the evidence that the defendant, by means of said false statements, pretenses and representations so made as aforesaid, or any one of them, and with the unlawful and fraudulent intent to cheat and defraud the said William Perry, and for that purpose did then and there obtain said money and note, or any part thereof, of the value of $30 or more; and you further find from the evidence that said statements, pretenses and representations, or any one of them, were untrue, and so known by the defendant at the time to he untrue and false, and that the said St. Louis Cement Brick Manufacturing Company then and there did not have a capital stock of $50,000 fully paid up, and that said corporation was not then and there in good and solvent condition and circumstances and doing a good business, and that said corporation, the St. Louis Cement Brick Manufacturing Company, did not have a brick manufacturing plant at which plant said corporation was then and there manufacturing 50,000 brick per day by steam power, or that the said Thomas P. Keyes was not then and there the owner of twenty shares of the capital stock of said corporation, or that the said twenty shares of stock were not then and there of the value of two thousand dollars, as stated in the information herein, and that defendant unlawfully and fraudulently made said false statements, pretenses and representations, or any one of them, for the purpose and with the intent unlawfully and fraudulently to cheat and defraud the said William Perry, then you should find the defendant guilty as charged in the information, and unless you so find the facts you should acquit the defendant. If you find the defendant guilty as charged, you will assess his punishment at imprisonment in the penitentiary for a term of not less than two years nor more than five years.
“2. The question of intent to cheat and defraud is one of fact for you to determine from all the evidence in the case. This intent need not he proven by direct and positive evidence, hut it may he lawfully and
properly inferred by you from all the facts and circumstances in evidence having reference to and bearing upon and tending to prove such intent, provided such evidence is sufficient to satisfy you of such intent beyond a reasonable doubt.
“3. The court instructs you that the defendant is on trial for obtaining money by false pretenses from William Perry, and for that offense alone, and that the testimony of transactions between defendant and other persons than William Perry was offered by the State and admitted by the court for the sole purpose of assisting you in determining the intent of the defendant and his good faith or honesty of purpose in any transaction he had with said William Perry, and you should consider it for that purpose, and that alone, and although you may believe that the defendant behaved dishonestly with such other persons, you cannot convict him- in this case unless you should also further believe and find from the evidence that he obtained money or property from said William Perry in a manner such as to make him guilty as defined in instruction number, one.
“4. You are further instructed that the law requires the-capital stock of all business and manufacturing corporations shall be paid up in lawful money of the United States*, or in property or services at their fair market value before it can be fully paid up; then if you believe and find from the evidence in this case that the capital stock of the St. Louis Cement Brick Manufacturing Company was fully paid up either in money or in property and services at their fair market value, o,r partly in each on the 9th day of July, 1904, you will find that said capital stock was fully paid up at that time.
“5. You are further instructed that the information contains the formal statement of the charge, but is not to be taken as any evidence of defendant’s guilt. The law presumes the defendant to be innocent, and this presumption continues until it has been overcome by evidence which establishes his guilt to your satisfaction and beyond a reasonable doubt; and the burden of proving his guilt rests with the State. If, however, this presumption has been overcome by the evidence and the guilt of the defendant established to a moral certainty and beyond a reasonable doubt, your duty is to convict. If, upon consideration of all the evidence, you have a reasonable doubt of the defendant’s guilt, you should acquit; but a doubt to authorize an acquittal on that ground ought to be a substantial doubt touching the defendant’s guilt, and not a mere possibility of his innocence.
“You are further instructed that you are the sole judges of the credibility of the witnesses and of the weight to be given to their testimony. In determining such credibility and weight, you will take into consideration the character of the witness, his or her manner on the stand, his or her interest, if any, in the result of the trial, his or her relation to or feeling towards the defendant or the prosecuting witness William Perry, and the probability or improbability of his or her statements, as well as all the facts and circumstances given in evidence. In this connection you are further instructed that if you believe that any witness has knowingly sworn falsely to any material fact, you are' at liberty to reject all or any portion of such witness’s testimony.
■ “6. The argument of counsel is for the purpose of aiding you to reach a proper verdict in the cause by refreshing in your mind the evidence which has been given to you in this cause and by showing the application of the law thereto; but whatever counsel may say, you will bear in mind that it is your duty to be governed in your deliberations by the evidence as you understand it and remember it to be true, and by the law as given by the court in these instructions, and render such verdict as in your conscience and reason and candid judgment seems to be just and proper.”

Upon the submission of the cause to the jury they returned a verdict of guilty, fixing the punishment of defendant at imprisonment in the penitentiary for a term of two years. Motions for new trial and in arrest of judgment were timely filed and by the court overruled. Judgment and sentence was rendered in accordance with the verdict and from this judgment defendant prosecuted his appeal to this court and the record is now before us for consideration.

OPINION.

The record in this cause presents three legal propositions for our consideration, which are embraced in the following assignments of error by appellant:

1st. That the facts developed upon the trial of this cause are insufficient to support the finding and verdict of the jury.
2nd. That the court erroneously declared the law to the jury.
3rd. That upon the testimony as introduced in this cause upon the trial the court failed to fully declare the law applicable to this cause.

I. The statute upon which this prosecution is predicated is section 1927, Revised Statutes 1899. It provides: “Every person who, with intent to cheat or defraud another, shall designedly, by color of any false token or writing, or by any other false pretense, obtain the signature of - any person to any written instrument, or obtain from any person any money, personal property, right in action or other valuable thing or effects whatsoever, and every person who shall, with the intent to cheat and defraud another, agree or contract with such person or his agent, clerk or servant for the purchase of any goods, wares, merchandise or other property whatsoever, to be paid for upon delivery, and shall, in pursuance of such intent to cheat and defraud, after obtaining possession of any such property, sell, transfer, secrete or dispose of the same before paying or satisfying his agent, clerk or servant therefor, shall, upon conviction thereof, be punished in the same manner and to the same extent as for feloniously stealing the money, property or thing so obtained.”

The first contention of the appellant, that the facts elicited at the trial of this cause are insufficient to support the verdict of the jury, is predicated upon the theory that the prosecuting witness could have readily investigated the truth or falsity of the representations charged in the information, and failing so to do it is insisted that under the law of this State such representations and pretenses as shown in the testimony do not fall within the provisions of the statute as herein indicated.

We have carefully read in detail the testimony of-all the witnesses testifying in this cause upon the trial as disclosed by the record before us, and we are unwilling to give our assent to the contention of appellant that the facts developed upon the trial are insufficient to support the finding and verdict of the jury. We are aware of the extent to' which some of the courts have gone in announcing the rule that it is no part of the duty of the court to interpose and undertake to protect the unduly credulous, who are willing to listen and give credence to the bold, naked statements or assertions of parties seeking to acquire money or property; undertaking to carry out the purposes of the statute defining and creating this offense, we are unwilling to take such an extreme view as is indicated by some of the cases cited by appellant. The enactment of the statute upon which this prosecution is predicated is a clear announcement to the public that this Commonwealth will not tolerate the obtaining of money by one person from another by any sort of fraudulent methods. If the rule is to be announced that money or property may be obtained from a citizen of this State by another by means of false and fraudulent representations, and with the design to cheat and defraud, and that, unless the party to whom such false and fraudulent representations are made makes an investigation which at least must require more or less time, trouble and expense, such party making such false and fraudulent representations does not fall within the provisions of the statute and is not guilty of the offense therein defined, we confess that such rule would very nearly approach the abolishment of the true purpose and spirit of the provisions of that statute. There would certainly be very few eases where false and fraudulent representations were made but what their truth or falsity, by the expenditure of a little time and money, could be ascertained. Such is not the spirit or purpose of the statute creating the offense upon which this prosecution is based. The effect of the law now under consideration is to require fair dealing between the citizens of this State, and to prohibit fraudulent and unfair methods in the transaction of business, and the courts are not authorized, under the provisions of this statute, to say to the citizen, “You may by false and fraudulent representations obtain the money and property of another, yet unless such person is sufficiently vigilant to make an investigation as to the truth or falsity of the representations, then you are not guilty of any offense within the terms of the provisions of the statute.” We do not mean to say that it is every false and fraudulent representation by which money and property of one person is obtained by another that constitutes the offense denounced by section 1927, for if the representations are absurd or irrational, or such as are not calculated to deceive the party to whom they are made, or when the pretenses and representations are such that the party to whom they were made had the means at hand at the time to detect their falsity, then, and in that case, there would he no criminal offense under the true spirit and purpose of the statute. But on the other hand, if false and fraudulent representations are made which are neither absurd nor irrational, and are such as are calculated to deceive the person to whom they are made, the failure of the party to whom such false and and fraudulent representations are made to ascertain their truth or falsity by making an investigation of the character of the business to which the representations referred, would by no means place the party making them beyond the purview of the provisions of the statute and not amenable to the penalties therein imposed.

The purpose of this statute was very clearly indicated in State v. Willard, 109 Mo. l. c. 247. Gantt, J., speaking for this court, said: “It is very clear that the statute was enacted to punish those, and those only, who obtain or attempt to obtain from any other person, his money, property or valuable thing, by means of or by use of some one of the fraudulent devices enumerated in the act itself. The two essentials of the offense are, first, the obtaining or attempting to obtain the goods, or other valuable thing, and, second, accomplishing it, by some of the means denounced in the statute. ’ ’

The design and purpose of statutes denouncing offenses like the one in the case at bar, in our opinion, is nowhere more clearly or correctly stated than in Watson v. People, 87 N. Y. l. c. 566 and 567. In discussing a statute similar to the one upon which this prosecution is based, the New York court expressed its views in the following language: “The statute is designed to furnish protection to those who from undue confidence in others, or inexperience, are liable to become the victims of dishonest and designing dealers. . . . When all the circumstances evince that the representation was made designedly with an intent to cheat, or was calculated to deceive and capable of defrauding, the prisoner'cannot excuse himself by saying that if you had been sharp, vigilant and astute, you could have detected the fraud. When there is an absolute representation, false and untrue, and known to be such, the purchaser of property has the right to rely upon it.....And common honesty and morality demand that the fraudulent dealers should not screen themselves by the excuse that the party could have detected the fraud if he had not relied upon the representations made. ’ ’

This court, in State v. Hubbard, 170 Mo. 346, indicates very clearly its inclination to follow the ruling of the New York court upon statutes treating of offenses of the character of the one at bar. In that case, quoting approvingly from 47 N. Y. 307, it is said: “Thus the false representations that defendant had money on deposit in bank and his check would be paid on presentation, was held sufficient. [Smith v. People, 47 N. Y. 303.] And it was further held that the court properly refused to charge the jury that the pretense must' appear in the indictment to be such as could not be guarded against by an exercise of common sagacity and prudence.” It further appears in the Hubbard case that this court is not favorably impressed with the theory that a person who obtains money or property by false or fraudulent representations may escape the penalties imposed by the provisions of the statute by showing that the party to whom the representations were made was unduly credulous and-failed to make an investigation, or that the representations were not sufficiently specific. Burgess, J., in speaking for this court, said: “Neither can defendant complain that the indictment does not more particularly describe the steer cattle, since it is his own description, nor does it lie in his mouth to find fault with the bank’s officers because they did not require and exact of him a more specific false pretense but trusted him and loaned him the money on the false representations which he saw fit to make. He cannot be allowed to say, ‘You trusted me on this representation, and because it was not specific I had a right to swindle you.’ ”

So it may be appropriately said in the case at bar, that the defendant cannot be allowed to say, “You believed and relied upon my representations in relation to the character and nature of the business in which I sold you stock, and I obtained your money by reason of such representations, but you having failed to be vigilant and make an investigation into my business affairs, and ascertain the truth or falsity of my representations, I had a right to swindle you, and I am not amenable to the provisions of the statute. ’ ’

The case of State v. Williams, 12 Mo. App. 415, is another indication of the views of the appellate courts of this State upon the propositions now under discussion, and that such views are not in accord with those of some of the decisions in other states cited by counsel for appellant. In that case defendant requested an instruction which embraced the declaration of law that, before the defendant could be convicted, it must appear from the evidence that such trick, deception and false representation, as charged in the indictment, were of a character against which a man of ordinary caution and intelligence could not have guarded himself. The trial court refused to approve of this part of the instruction requested and the same was stricken out and the remainder of the instruction was given. The Court of Appeals, in speaking of the action of the trial court in its refusal to approve that part of the instruction, said: “That was right. The part stricken out was not the law. The law was intended for the protection of persons who are not possessed of ordinary caution and intelligence; for these are the persons who are generally victimized by such tricks as the one which the defendant is shown to have resorted to in this case.”

While the rule as contended for by learned counsel for appellant finds some support in decisions of other states, yet after a careful review of all the authorities the contention is opposed by the overwhelming weight of authorities in this country. The law is nowhere more clearly or correctly stated upon this subject than in the ease of Woodbury v. State, 69 Ala. 242. In discussing the subject of false pretense, the Supreme Court of Alabama said: “A false pretense, to be indictable, must be calculated to deceive and defraud. As of an actionable misrepresentation, it must be of a material fact, on which the party to whom it is made has the right to rely; not the mere expression of an opinion, and not of facts open to his present observation, and'in reference to which, if he observed, he could obtain correct knowledge. Whether the prosecutor could have avoided imposition from the false pretense, if he had exercised ordinary prudence and discretion to detect its falsity, is not a material inquiry. As a general rule, if the pretense is not of itself absurd or irrational, or if he had not, at the very time it was made and acted on, the means at hand of detecting its falsehood, if he was really imposed on, his want of prudence is not a defense. [2 Whart. Cr. Law, sec. 2128.] ”

In Thomas v. People, 113 Ill. 531, it was very appropriately said by the court in that case: “We think it does not lie in the mouths of these defendants to say, that because, by their artifice, they inspired an unmerited confidence, they are guiltless. The offense is the combination to obtain property by false pretenses; and the very object might be, and often is, to so influence the party as to prevent the accuracy of the pretenses being tested. Whether one owns property, is a fact. The truth in regard to it-might, undoubtedly, be disclosed by the record, but it might equally be disclosed by the declarations of the party; and the most dangerous artifice, and that against which it is most important the law should protect simple-minded and credulous people, is that whereby they are induced to forego all investigation, and trust implicitly to the trickster.” [2 Wharton on Crim. Law (7 Ed.), sec. 2128; Cowen v. People, 14 Ill. 348; State v. Munday, 78 N. C. 460; State v. Dorr, 33 Maine 498.]

The Supreme Court of Iowa, in State v. Montgomery, 56 Iowa l. c. 199, in discussing the correctness of an instruction given on the part of the State, said: “We can conceive that alleged false pretenses might he so frivolous as to preclude the supposition that any person could he misled by them and induced thereby to part with Ms money. But this is certainly not such a case. The court was fully justified in submitting the question as to whether the defendant obtained Frizzell’s money by the false representations. It is true that these representations were not such as would probably have induced a shrewd and experienced man to part with his money. The criminal classes, it may be presumed, do not usually approach such men with such methods. But they were well calculated, we think, to mislead and defraud some men. At all events, it was a fair question for the jury as to whether they believed that Frizzell was defrauded by them, and this question was fairly submitted. If Frizzell was defrauded by the false pretenses, they are not to be regarded as frivolous as to him. We see no error in the instruction.” This case was followed and re-affirmed by the same court in State v. Davis, in the same volume at page 202.

In Commonwealth v. Lee, 149 Mass. l. c. 184, the Supreme Court of that State, in discussing one of the instructions in the cause, thus expressed its views upon the law as embraced in an instruction. It said: ‘ ‘ The instruction, that the indictment could not be sustained if James, the seller, had the means of knowing that the property was not that of the defendant, should not have been given. He was entitled to rely on the statements of the defendant, and was not further put upon his inquiry as to a motive which was within the knowledge of the defendant, and as to which he himself knew nothing.”

In State v. Hill, 72 Maine 238, the defendant was indicted, tried and convicted of fraudulently obtaining possession of a horse by purchase on credit, by false pretenses that he was the owner of valuable and unincumbered real estate. By the facts developed upon the trial of the case it was shown that the real estate was incumbered by a mortgage, and the defendant’s counsel requested the court to instruct the jury that if the mortgages were recorded it was notice to Mr. Best to negative a charge that he was deceived by any representations, if made, that the real estate was free from incumbrance. The court in discussing such request said that it was properly refused and expressly ruled that the doctrine of constructive notice does not apply to such cases.

In .re Greenough, was a habeas corpus proceeding decided by the Supreme Court of Vermont (31 Vt. 279). The petitioner, Greenough, in that proceeding, had been indicted in the State of Illinois under a statute denouncing the offense of obtaining money under false pretenses. He fled to the State of Vermont and the Illinois authorities were seeking to enforce their proceeding against him and secure his arrest in the State of Vermont, whereupon the petitioner made application for a writ of habeas corpus in the State of Vermont. It was insisted by counsel for the petitioner that there was no offense charged under the statute of Illinois, and the Supreme Court of Vermont, in discussing that question, said: ‘£ The pretense, as charged, is the false and fraudulent representation that a certain recipe in writing, combining certain articles, would produce, as a compound, a non-explosive burning-fluid and camphene, of great value. The bill negates in toto the truth of the representation, and charges upon Greenough a scienter of its falsity, and fraud also, and that the vendee purchased the recipe for the sum paid by him as alleged in the bill, relying upon the representations of Greenough. If the means used by Greenough constitute a false pretense, I do not understand it is claimed that this is not a case within the-Illinois statute. I am not aware what the decisions of the Illinois courts have been on this statute, but I presume they have been, and will be, in unison with those of other courts upon similar statutes. The statute of Illinois is equally broad with the English statute of George IY, and the statutes of other states, and it was designed to protect the weaker part of mankind, and it has been held to be law at the present day, that it is none the less a false pretense, although the party imposed upon might by common prudence have avoided the imposition. If he was in fact imposed upon, it is no good reason for the offender to allege, that by use of due diligence or ordinary care the imposition might have been prevented. [See 2 East Pleas of Crown, 828; Reg. v. Wickham, 10 Adol. & E. 34; Reg. v. Woolley, 1 Den. C. C. 559; Commonwealth v. Henry, 10 Harris 256.] ”

Many other states have expressed similar views to those herein indicated, but we deem it unnecessary to further burden this opinion with the citation of additional authorities. It is apparent from the insistence of counsel for appellant that the case of State v. Cameron, 117 Mo. 641, is chiefly relied upon to support the contention so earnestly and ably presented in this cause. An analysis of the decision in the Cameron case clearly demonstrates that it is not in conflict with the conclusions indicated as applicable to the case at bar, nor in conflict with the rules announced by the courts of other states to which we have called attention. The facts before the court in that case manifestly distinguish it from the case at bar. Gantt, J., speaking for this court, decided the Cameron case, and with what was said in that case we find no fault, and do not mean, by the rules announced as applicable to the case now in hand, to retract any of the rules of law as therein announced. It is well not to overlook what in fact was decided by Judge Gantt in the Cameron case respecting the subject now under discussion. He said, during the course of the opinion, that ‘ ‘ the contract is nowhere set out, but it is alleged it was in writing. There is no averment that Richards could not, or did not, read the contract, nor is there any averment of any fraudulent trick or device by which he was prevented from reading the contract before he signed it. It is not pretended that defendant failed to do the work. On the contrary, Richards says when it was finished, defendant produced the contract, estimated the work, and found it came to $195, and he paid him the cash therefor without protest. It is charged that the promise of defendant was that the extra work over the one hundred feet should not exceed $5, and yet when the written contract was presented to Richards to sign, by which he was obligated to pay $195 for the work, no reason is given for his signing it. It is not averred that he was so ignorant he could not read the writing, or that he was blind, or that he was shown one paper, and, by a trick, induced to sign another. The slightest attention on his part to the ordinary methods of transacting business, especially between strangers, would have enabled him at once to discover the contract called for more than he had agreed to pay, and he could have 'declined to sign it; but more than this, when called on to pay, if the contract had been fraudulently procured, he could have retained his money in nis pocket, but with a full knowledge that the defendant claimed the contract called for $195, and with no concealment on defendant’s part of this claim, he paid that amount. It is not the policy of the law to punish as a crime the making of every foolish or ill-considered agreement. If it is, the jails and prisons must be greatly enlarged. ‘Where the pretense is absurd, or irrational, or such as the party injured had, at the very time, the means of detecting at hand, it is not within the act. ’ [Com. v. Hutchinson, 2 Par. (Pa.) Sel. Equity Cas. side p. 309.]”

That is not this case, as is clearly indicated by the testimony heretofore recited. We have in this case the defendant, who apparently was a business man, operating a business in the city of St. Louis. He had an office in the same building with the prosecuting witness; had a lot of sample brick in the office which he claimed were made at the brick factory, and then proceeded to negotiate a sale of so many shares of stock in the brick company, and made representations as to the nature and character of the business heretofore indicated, the solvency of the concern and the amount of profits to be realized therefrom. Now, while it may be said that careful and prudent business principles would have required a more diligent effort to ascertain the truth or falsity of the representations than was made by the prosecuting witness, yet it is manifest that such representations were not absurd or irrational, but on the contrary were just such representations as are frequently relied upon by reasonably intelligent business men who are deceived thereby, and we are unwilling to say that, if the representations such as the testimony indicates were made in this case were false and fraudulent, and made by the defendant with the intent and design of defrauding the prosecuting witness, and in fact did defraud him, simply because he was not as vigilant as he should have been, and did not exercise that extreme care and prudence that the shrewd business man would have exercised under similar circumstances, such wrongful acts are not such as fall within the provisions of section 1927.

II. This brings us to the consideration of the complaint by appellant that the court erroneously declared the law to the jury. There are three grounds upon which the appellant predicates his challenge to the correctness of the instructions given by the court:

1st. That the court did not properly define the offense of obtaining money or property by false pretenses.
2d. That the court failed to instruct the jury that a duty rested upon the prosecuting witness to investigate the alleged representations claimed to have been made by the defendant.
3d. That the court erroneously instructed the jury that if either one or all of the alleged representations made by the defendant were relied upon and believed to be true by the prosecuting witness and he was deceived thereby and parted with his money, checks and drafts mentioned, then the defendant should be convicted.

Instruction 1 given by the court in this case required the jury to find every essential fact necessary to constitute the offense with which the defendant was charged, and there was no necessity for any further definition of the crime of obtaining money or property under false pretenses. The terms of the statute defining this offense and used in charging it in the information are not technical terms, and, as was said in State v. McChesney, 16 Mo. App. l. c, 269, “We are not aware of any rule which makes it necessary to define more fully for the comprehension of the jury, the nature of the offense or of the means by which it may be perpetrated. The terms ‘false pretense’ and ‘false representation’ have no technical meaning different from that of their common daily acceptation, wherever they are used by persons who speak our language. No instruction from the court could present their meaning any more clearly than it must be perceived by men of sufficient intelligence to occupy a jury-box, in the import of the words themselves.”

There is no merit in this insistence, and that point must be ruled adversely to the appellant.

The next insistence of the appellant in respect to errors complained of in the instructions is that the court should have instructed the jury that there was a duty resting upon the prosecuting witness to make an investigation of the truth or falsity of the representations made, and that his failure to make such investigation entitled the defendant to an acquittal.

Upon this proposition it is sufficient to say that, while it was clearly the duty of the court to submit to the jury the question as to whether the representations complained of in the information were in fact made, we think it is clear that it was no part of the duty of the court to submit to the jury the question as to whether or not the prosecuting witness made an investigation to ascertain the truth or falsity of the representations made, and to have so instructed the jury would have been manifestly an erroneous conception of the law upon that subject.

In causes for obtaining money by false and fraudulent representations, when the testimony is all in, then it is purely a question of law with the courts as to whether or not the representations indicated by the testimony in the cause fall within the provisions of the statute denouncing the offense, and if they do then it is the duty of the court to require the jury to find as a question of fact whether such representations were in fact made with the intent, etc., required by the law. At the close of the testimony the court must determine as a legal proposition as to whether or not the testimony is sufficient to submit the cause to the jury, and it is not a question to be submitted to the jury as to whether or not the representations were absurd, irrational, or whether or not there should have been an investigation of the truth or falsity of the representations charged to have been made. That is a matter that must be determined by the court; otherwise, it would simply amount to submitting a legal proposition to the jury as to whether or not the respresentations made, as indicated by the testimony, constituted a criminal offense under the provisions of the statute, and it certainly will not be seriously contended that that question could be submitted to the jury. In other words, it is the province of the jury to determine whether or not the representations as' charged were made, but whether or not representations under all the surrounding circumstances constitute an offense, the manner in which they are made, the means that the party to whom the representations were made had at hand at the very time of detecting their truth or falsity, are legal questions and must be determined by the court. There was no error in the failure of the court to embrace in its instructions and require the jury to find the facts as contended for by the appellant.

It is next insisted that the court’s instructions to the jury which permitted a conviction upon either one or all of the alleged representations made by the defendant, were erroneous and improperly declared the law. It is sufficient to say of this complaint that the correctness of the instruction finds support both by the, text-writers and the decisions of this court. This instruction is in perfect harmony with the law as declared in State v. Vorback, 66 Mo. l. c. 172. The rule was thus announced in that case: “In an indictment for obtaining goods or money under false pretenses, when several such pretenses are alleged, the proof of any one will sustain the indictment. ’ ’ Mr. Bishop in his' recognized standard work upon Criminal Law (6 Ed.), volume 2, section 418, very clearly stated the rule. He says: “There need be only one false pretense, and though several such pretenses are set out in an indictment, yet if anyone of them is proved, being such as truly amounts in law to a false pretense, the indictment is sustained.”

We have carefully considered all of the instructions given by the court in this cause. They fully cover every phase of this cause to which the testimony was applicable. The testimony as detailed by the witnesses was ample to support the finding and verdict of the jury. ^

^ We have given expression to our views upon the legal propositions disclosed by the record in this cause, and finding no reversible error the judgment of the trial court should be affirmed, and it is so ordered.

All concur.


source: Caselaw Access Project

author: GANTT, J.

license: Public Domain

text:
    THE STATE v. MAUPIN, Appellant.
    Division Two,
    May 22, 1906.
    1. SERVICE OF INFORMATION: Waiver. The record recites that “defendant being served by the clerk of this court with a true copy of the information herein filed by the prosecuting attorney waives all exceptions as to time;” and thereupon the case was continued until the next term of court. Defendant did not object to the alleged failure to serve him with a true copy of the information, but entered his plea of not guilty and went to trial. Held, that, if there was any defect in the service of the information, defendant waived the same.
    2. MURDER: Mutual Combat: Deadly Weapon. When parties engage in a mutual combat, under color of fighting upon equal terms, and one of them, without the knowledge of the other, uses, from the beginning of the combat, a deadly weapon, and kills, or when, at the beginning, he prepares -a deadly weapon, so as to have the power of using it in some part of the combat, and does use it, and kills the other party with it, the killing will amount to murder.
    3. -: -: Sufficiency of Evidence. Evidence held sufficient to justify a verdict of murder in the second degree, committed by one of the parties to a mutual combat.
    4. CLOSING CASE: Absent Witnesses: Defendant's Neglect: No Exception. When the State had closed its case in rebuttal, defendant objected to the court’s closing the evidence at that point, for the reason that he had other witnesses whom he desired to offer, but could not because they were not in the courtroom. The court was not advised who the witnesses were nor upon what point they were to be called in rebuttal, and no exception was saved to the action of the court in closing the case. Moreover, defendant’s affidavit discloses that he was informed during the trial that one of these absent witnesses would contradict witnesses who had testified for the State, and ,yet he took no steps to procure a subpoena for such witness, nor does it appear that he ever interrogated him as to what his testimony would be. Seld, that, under these circumstances, the court committed no error in closing the case.
    5. INSTRUCTIONS: Reasonable Doubt: Good Character: Self-Defense: Defendant as Witness. Instructions on reasonable doubt, defendant’s good character, the right of self-defense, and the weight to be given to defendant’s testimony, held to correctly state the law on those subjects.

      6. -: Refusing Defendant’s. No error is committed in refusing instructions requested by defendant when the points therein presented have been covered by instructions already given.
    7. -: Presumption of Innocence: Reasonable Doubt. It is not reversible error to refuse an instruction stating the presumption of innocence when the court has already fully instructed on the subject of reasonable doubt.
    8. -: On Manslaughter: No Evidence: No Request or Exception. If defendant desired an instruction on manslaughter, he should have requested it, and excepted to the failure or refusal of the court to give it, and then made this a ground of the motion for new trial, and having failed to do so, the point is not before the appellate court for review. And in this case it is held that the evidence would not have justified the giving of an instruction on manslaughter.
    Appeal from Taney Circuit Court.— Hon. Jno. T. Moore, Judge.
    Affirmed.

      Price & Ford for appellant.
    (1) The copy of the information as served upon defendant was not certified to by the clerk of the conrt, and for that reason gave no notice to him of the charge against him. E. S. 1899, sec. 2558; State v. Schmidt, 137 Mo. 266. (2) The verdict is against the evidence. (3) The conrt erred in allowing important witnesses for defendant to leave and he sent away during the session of the conrt, and in refnsing to allow defendant time in which to secnre their testimony. (4) The failure of the conrt to give an instruction for manslaughter in the fourth degree is reversible error.

      Herbert 8. Hadley, Attorney-General, and N. I. Gentry, Assistant Attorney-General, for the State.
    (1) The rule of practice has been to require a defendant to preserve in the record a failure to serve him with a true copy of the indictment or information; otherwise the point is waived. And when a defendant enters his plea of not guilty and goes to trial, he thereby waives the service of a copy of the indictment or information. State v. Schmidt, 137 Mo. 269; State v. Nelson, 132 Mo. 196. (2) “If a party, under color of fighting upon equal terms, use from the beginning of the contest a deadly weapon without the knowledge of the other party, and kill the other party with such weapon; or if at the beginning of the contest he prepare a deadly weapon, so as to have the power of using it in some part of the contest, and use it accordingly in the course of the combat, and kill the other party with the weapon; the killing in both these cases will be murder.” 1 Wharton’s Crim. Law (10 Ed.), sec. 474; 1 Bishpp’s New Crim. Law, sec. 842; 1 Russell on Crimes, 529, 531; State v. Christian, 66 Mo. 138. (3) Defendant is in no position to complain of the action of the trial court in closing the ease at the time it did. After the defendant had closed his case, the State offered only two witnesses, who testified in rebuttal. Defendant made no statement of what he expected to prove by the absent witnesses; hence, this court cannot tell whether the evidence would have been relevant or irrelevant, material or immaterial. State v. Strattman, 100 Mo. 540. Again, defendant, in his application, did not state the names of said witnesses, nor that he had used any diligence to procure the attendance of said witnesses; so of course the court could not have given him additional time to have process issued, the witnesses served and their attendance procured. State v. Mitchell, 98 Mo. 657. (4) No error was committed by the court in failing to instruct the jury on the subject of manslaughter. But even if error was committed, defendant has waived it by failing to make any objections to such failure at the time; and also by failing to call the court’s attention to such alleged failure in the motion for a new trial.- State v. Cantlin, 118 Mo. Ill; State v. Albright, 144 Mo. 638; State v. McGinnis, 158 Mo. 105; State v. Ferguson, 162 Mo. 668.
   GANTT, J.

At the April term, 1905, of the circuit court of Taney county, the prosecuting attorney of that county filed an information, duly verified, charging the defendant with murder in the first degree of one Charles Knight, on the 7th of February, 1905, at said county. At the June term, 1905, the defendant was tried and convicted of murder in the second degree, and his punishment assessed at twelve years in the penitentiary. In due time he filed his motions for new trial and in arrest of judgment, which being overruled, he was sentenced in accordance with the verdict, and from that sentence he appeals.

The State’s evidence tended to show that on the night of February 7, 1905, there was a dance at the home of Jeff Clayton, near the town of Hercules, in Taney county. The defendant and the deceased went to this dance. The defendant was the1 escort of Miss Bertha Wright, and the deceased of another young lady. The evidence shows that the deceased and other young men were drinking considerably that night, though there had been no other trouble. During the evening, the deceased and the defendant were standing facing each other in front of the fireplace. Deceased said to defendant that he was a better man than defendant was, to which defendant replied that he would have to he shown; deceased then stated that if defendant would go out of the house, he (deceased) would show him, and defendant said he would go any place; and in a moment both of them went out of the front door into the yard, defendant going first. As defendant turned and started toward the door, he put his hand in his pocket, and when they reached the yard, the evidence for the State tends to show that before deceased had made any movement towards the defendant, defendant took hold of the deceased by the collar and struck him on the neck, and then hit him six or seven times, the deceased striking hack. The defendant then threw the deceased towards the gate, or as expressed by one witness, lie “slung” deceased toward the gate, deceased going in a stooped-over position. While standing near the gate, the deceased fired three shots from a pistol; defendant at that time was running around the corner of the house. Deceased then exclaimed, ‘ ‘Ward [the defendant] has cut me all to pieces.” He then walked back to the front door and fell, and it was discovered that he had been stabbed on the neck and back. He was carried into the house, and died in a few minutes, before the physician could be summoned. An examination of his body disclosed that there were six wounds, all inflicted with a knife, one of which was a gash on the neck, which severed the jugular vein, and doubtless produced his death.

On behalf of the defendant, the evidence tended to prove that the deceased had asked Miss Mary Burns to go with him to the dance, but she declined; he insisted, saying that it was his last dance in Taney county, that if she did not go, she would wish that she had gone, as something was going to happen. It also appeared in evidence that on the day prior to the dance, deceased stated to one John Howard, that he (deceased) was going to said dance to make the people dance when he said dance and to run things. That he was going to leave the county, and was going to lick somebody, or get a licking. That deceased carried a pistol the night of the dance, and he objected to Miss Maud Cranfield. dancing with George Adamson, and said that he would shoot Adamson if she danced with him. It appeared that on the Sunday before the dance, defendant and deceased called together at the home of a Miss Bertha Wright, and a Miss Dinah Robins was there. The defendant spent most of his time talking to Miss Wright, and the deceased to Miss Robins; that when defendant and Miss Wright entered the room, deceased was lying on the bed; and Miss Wright said if he didn’t get up she would whip him. This familiarity displeased the defendant, and he told Miss Wright she could take her choice, either talk to him or to the deceased, and he guessed he would quit, and she promptly replied that there were other hoys for her to talk to and his quitting was all right. When this conversation was reported to the deceased, he said it did him more good than anything, and laughed heartily. On the night of the dance, the deceased came to Miss Wright and asked her if he could beat that fellow’s time, and upon receiving a negative reply, deceased said to her, if I can’t take her home, Ward Maupin can’t either. The defendant’s evidence further tended to show that after the conversation in front of the fireplace, defendant and deceased went out of the house and the deceased began cursing and threatening to kill defendant; that deceased grabbed hold of the defendant’s collar and struck him twice; that after a scramble between them defendant turned and ran, and deceased shot at him three times.

The defendant testified, in his own behalf, that deceased was standing by the fire and he walked up to him and deceased began talking about Bertha Wright and he said he could beat my time, and I told him “all right he could do it to-night if he wanted to,” and he said, “No, I would not do it to save your life.” He then said, “If you had not passed me to-night, I would take you out and beat h— out of you,” and I said, “I don’t know whether you would or not,” and he said, “If you go out doors I will show you',” and I said, “Now, there is no use of us having any trouble,”' and he said, “Don’t get mad,” and gave me a shove on the shoulder, and when we got into the yard, he took hold of my coat collar and said,“ You know I can beat h— out of you,” and he took hold of my coat collar and struck at me and reached his hand in his pocket, aud when he did that, I put my hand in my pocket and got my knife and went to cutting. He got his revolver and shot at me, and I stooped down to the ground and he shot over me. Defendant identified the knife with which he did the cutting. He testified that he went out doors because deceased ordered him out. There was evidence also that defendant went to his home that night, but did not stay there, and could not be ar,rested for several days, but on the following Tuesday he gave himself up to the deputy sheriff. There was also evidence to the effect that the defendant had a good reputation as a peaceable and law-abiding citizen.

In rebuttal, the State proved by two witnesses that defendant’s witness, Charles Carlyle, was not near the defendant and the deceased at the time of the difficulty, but was in another room. At the close of the State’s evidence in rebuttal, the record recites: “The defendant objects to the court closing this case for the reason that there was evidence in rebuttal which they purpose to offer, but cannot on account .of the witness not being in the court room. Thereupon the case closed and the court proceeded to instruct the jury.”

The court instructed the jury on murder in the first degree and defined the terms willfully, deliberately, premeditatedly, malice, and malice aforethought. The court also instructed on reasonable doubt, previous good character of the defendant, credibility of witnesses, and self-defense. The defendant prayed the court to give eight instructions, which the court refused, and the defendant saved his exceptions to the giving of those on behalf of the State and to the refusal of those prayed by his counsel. Various errors are assigned for a reversal of the judgment,o'f the circuit court, and these will be considered in the order of defendant’s brief.

I. The point is made that the copy of the information served upon the defendant was not certified by the clerk of the court. In support of this proposition, we are cited to the case of State v. Schmidt, 137 Mo. 269. There can be no doubt under our statute that a defendant charged with murder in the first degree is entitled to a copy of the information before he is required to plead. And the record in this case shows that the information was filed at the April term, 1905. And the record recites that on the 27th of April, the prosecuting attorney appeared on behalf of the State as also the defendant in his own proper person as well as by his attorney, “and the defendant being served by the clerk of this court with a true copy of the information herein filed by the prosecuting attorney waives all exceptions as to time.” And thereupon the cause was continued until the next term of the court. No objection appeared to have been made by the defendant to the failure to serve him with a true copy of the information and he entered his plea of not guilty and went to trial thereon. By so doing he waived the service of the information, if there had in fact been any failure in this respect. [State v. Schmidt, 137 Mo. 269; State v. Nelson, 132 Mo. l. c. 196.]

II. It is next insisted that the verdict of the jury is against the evidence. As to this it is sufficient to say that there was a direct conflict between the evidence for the State and that for the defendant. It may be conceded that if all of the defendant’s testimony was true, and the jury had believed it, the verdict might well have been one of acquittal, but the evidence was a matter for the consideration of the jury, and by their verdict it is evident that' the jury did not believe the testimony for the defendant and his witness Carlyle, and this was the province of the jury. It is evident, moreover, that there was more or less ill feeling between the defendant and the deceased over the witness Miss Wright. The evidence on behalf of the State indicates that before the deceased had struck or attempted to strike the defendant, after they had retired to the yard to settle the question of their physical power, the defendant began to strike the deceased about the neck and shoulders; and it was subsequently developed that these blow£ were made by a knife and resulted in the death of the deceased. In” State v. Underwood, 57 Mo. l. c. 50, Judge Wagner., speaking for the court, said: “The 9th instruction is predicated upon the hypothesis that there was a mutual and voluntary comhat. If that was so, defendant could not rely upon self-defense. For where parties by mutual understanding engage in a conflict and death ensues to either, the slayer will be guilty of murder.” And in State v. Christian, 66 Mo. l. c. 147, this court again said: “It was also held in the case of the State v. Underwood, 57 Mo. 40, that when parties by mutual understanding engage in the conflict and death ensues to either, the slayer will be guilty of murder. When the combat is the immediate consequence of a sudden quarrel, and not an act of deliberation or agreement, it might he different; but even in cases of this kind the conclusion of malice may he reached if the party killing began the attack with circumstances of undue advantage. When a party, under color of fighting upon equal terms, uses, from the beginning of the contest, a deadly weapon, without the knowledge of the other, and kills, or when, at the beginning, he prepares a deadly weapon, so as to have the power of using it in some part of the contest, and does use it, and kills the other party with it, the killing will amount to murder. [1 Russell on Crimes, 529, 531.]” This last statement of the law is approved by Wharton in his work on Criminal Law (10 Ed.), sec. 474. In view of these statements of the law, can it be said there was not sufficient evidence to sustain the conviction of murder in the second degree? According to the State’s witnesses there was a mutual agreement between the deceased and the defendant to engage in the fight, and they went out into the yard for that purpose and the evidence is sufficient to support the conclusion that it was to be a fair fight upon equal terms, but that the defendant under the color of a fist fight prepared his knife with the purpose of using it in the contest, and the evidence on the part of the State tended to prove that he used it from the very beginning upon the neck and shoulders and hack of the deceased, and from the wounds inflicted with this knife the deceased died. And while'the State’s evidence showed this, the evidence on behalf of the defendant also tend-, ed to show that he entered into the fight willingly and went out of doors for that purpose, and while defendant says that he did not use his knife until after deceased had assaulted him, the evidence on the part of the State tended to prove that the defendant forced the fighting from the very beginning and the fact that deceased did draw his pistol and fire at the defendant after the defendant had stabbed him and inflicted the mortal wound, does not change the complexion of the case. Under the rule as announced by Bussell, Wharton and Bishop and by this court in State v. Christian and State v. Underwood, supra, it cannot in our opinion be said that the evidence did not justify a verdict of murder in the second degree.

III. Error is assigned because the witnesses Burris and the two Lawsons, who had been subpoenaed for the State, went home and defendant did not have an opportunity to place them upon the witness stand after the State had closed its case in rebuttal. As to this proposition, the record shows that when the State closed its case in rebuttal, the defendant objected to the court closing the evidence at that point for the reason that the defendant had other witnesses whom he purposed to offer, but could not because the witnesses were not in the court room. The court was not advised who the witness or witnesses were, nor upon what point they were to be called in rebuttal, and no exception was saved to the action of the court in closing the case. The point now made that these witnesses were excused by the sheriff is not supported either by affidavit of the defendant himself or the witness Burris, Moreover, the affidavit of the defendant himself discloses that during the trial he was informed that Burris would contradict the witnesses Mowrey and Morgan, and yet lie took no steps to procure a subpoena for tbe witness Burris; nor, indeed, does it appear that he ever interrogated Burris as to what his testimony would be. We think it is too plain for argument that the circuit court committed no error in closing the case in these circumstances, but on the contrary if the defendant really wanted the witness, he was guilty of inexcusable negligence in not taking the proper steps to secure the attendance of the witness in his own behalf. [State v. Strattman, 100 Mo. 540; State v. Mitchell, 98 Mo. 657; State v. Raven, 115 Mo. 419; State v. Hilsabeck, 132 Mo. 357.]

IY. In his motion for new trial the defendant assigns as error the giving of instructions 4 to 7 inclusive. Instruction 4 given by the court is in these words: ‘ ‘ The court instructs the jury that before you can convict the defendant, you must believe him guilty beyond a reasonable doubt, but a doubt to authorize an acquittal must be a substantial doubt based on the evidence and not a mere possibility of innocence.” This instruction is substantially the instruction on reasonable doubt approved in State v. Nueslein, 25 Mo. 111, and State v. Knock, 142 Mo. l. c. 524. Instruction 5 told the jury that the previous good character of the defendant if proved to their reasonable satisfaction oug'ht to be considered by the jury in passing upon the guilt or innocence of the defendant, because the law presumes that a man whose character is good is less likely to commit a crime than one whose character is not good, but if all the evidence in the case, including that which had been given touching the previous good character of the defendant, showed him to be guilty of the charge, then his previous good character could not justify, excuse, palliate or mitigate the offense. This . instruction was as favorable as the defendant could ask and has often been approved by this court. Instruction 6 was the usual instruction and told the jury they were the sole judges of the credibility of the witnesses and the weight and value to be given their testimony. It has been so universally approved that nothing more need be said in regard to it. Instruction 7 was as follows: “The court instructs the jury that the law of self-defense is emphatically the law of necessity, to which the party may have recourse under certain circumstances to prevent any reasonably apprehended great injury which he may have reasonable grounds to believe is about to fall upon him! If you believe that defendant had reasonable cause to apprehend a design on the part of deceased to commit a felony upon defendant or to do him some great personal injury, and that there was reasonable cause to apprehend immediate danger of such design being carried out, and he cut deceased and killed him to prevent the accomplishment of such apprehended design, then the killing is justifiable upon the ground of self-defense, and you should acquit him.” The objection to this instruction is based solely upon the fact that the court used the phrase, “that the law of- self-defense is emphatically the law of necessity. ’ ’ Read together, it is apparent that the instruction is a correct statement of the law and contains no error which would justify the reversal of the judgment. Instruction 8 is as follows: “The court instructs the jury that the defendant is a competent witness in his own behalf and you may consider his testimony, but in determining what weight and credit you will give his testimony you may take into consideration the fact that he is the defendant on trial and interested in the result of the trial.” There was no error in giving this instruction.

The defendant likewise complains of the refusal of certain instructions asked by his counsel. There was no error in refusing the first instruction asked by the defendant on the subject of reasonable doubt and presumption of innocence. This point was fully considered in State v. Kennedy, 154 Mo. l. c. 287, 288 and 289, in which, it was held not reversible error to refuse an instruction stating the presumption of innocence when the court had fully instructed on the doctrine of reasonable doubt. [State v. Young, 105 Mo. 640; State v. Harper, 149 Mo. 514.] While a different view was taken by the Supreme Court of the United States in Coffin v. United States, 156 U. S. 432, we adhere to our own decisions upon this proposition.

Again, it is insisted that the court erred in not giving the defendant’s instruction 2 in regard to his right to testify in his own behalf. As the court had already properly instructed on this subject, no error was committed in refusing this instruction. Instructions 3, 4 and 5, requested by defendant, declared the law of self-defense. They are each in substance the same as that given by the- court of its motion on self-defense, except that they are more elaborate and inform the jury that the danger the defendant apprehended need not have been actual or real and about to fall upon defendant, but it was sufficient if there was reasonable cause on his part to apprehend it, and in the fourth that it was not required of him that he should nicely gauge the amount of force necessary to be used to protect himself from the apprehended danger. These instructions are well enough in a proper case and the defendant is entitled to them if the facts justify them, but we think that in this case the instruction given by the court was all that was necessary to advise the jury on the law of self-defense. Indeed, in view of the testimony there can be no doubt that this was a case of agreed mutual combat and that from the very beginning defendant used his knife on deceased, inflicting a mortal wound from which deceased died. In giving an instruction at all on the subject of self-defense, the court was exceedingly fair to defendant, and he has no ground to complain that the jury found that he was not acting in self-defense, but was using a deadly weapon on his adversary from the start. Instructions must be based upon testimony and instructions entirely proper in one case frequently have no relevancy in another.

No error was committed in refusing instruction 7, because the court had already instructed'on reasonable doubt. Finally, it is now for the first time insisted that the court should have instructed on manslaughter in the fourth degree. No such instruction was asked by defendant and no exception saved to the failure of the court to instruct on all questions of law applicable to the facts of the case. Moreover, the failure to instruct on Manslaughter is not made a ground of the motion for new trial, and hence the point is not before us for review, but if it was, we do not think the evidence would have justified it. The judgment must be and is affirmed.

Burgess, P. J., and Pox., J., concur.


text:
    THE STATE v. MORGAN, Appellant.
    Division Two,
    May 22, 1906.
    1. PRIVILEGED COMMUNICATION: To Minister of Gospel. In order to render inadmissible statements made to a minister of any denomination, such statements must bave been made to bim in bis professional character in the course of discipline enjoined by the rules of practice of such denomination. The mere fact that defendant made statements to a minister, who preached in the community where the alleged crime was committed, did not make such statements inadmissible.
    2. INSTRUCTIONS: No Exception. Where the record shows no objections made or exceptions taken to the action of the court in giving and refusing instructions, the court’s action in this respect is not subject to review in the appellate court.
    3. INFORMATION: Omission of Words “Upon His Oath:” Charges Manslaughter.. An information which fails, in its closing part, to state that the prosecuting attorney “upon bis oath” does say, etc., while insufficient to charge murder, is sufficient to charge manslaughter.

      Appeal from Plowell Circuit Court.—lion. Wm. N. Evans, Judge.

      Affirmed.

      J. N. Burroughs and N. B. Wilkerson for appellant.
    Confessions made to a minister or priest in his official character and for the purpose of procuring spiritual advice are not admissible for any purpose. R. S. 1899, sec. 4659; Martin v. Bowden, 158 Mo. 379.

      Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    (1) The information is sufficient to charge defendant with the crime of manslaughter, the crime of which he was convicted. While it dues not use the closing form “on his oath aforesaid,” yet in its present form it charges manslaughter. State v. Dawson, 187 Mo.'60'; State v. Coleman, 186 Mo. 164. (2) “Under the statutes a communication, to be privileged, must be made by a penitent as an enjoined religious discipline to a priest, and do not cover a confession made to a clergyman not in the course of such discipline.” 1 Wharton on Evid. (3 Ed.), sec. 597; Gillooley v. State, 58 Ind. 182; People y. Gates, 13 Wend. 324; Knight v. Lee, 80 Ind. 204; see. 4659, R. S. 1899; Dehler v. State, 22 Ind. App. 391; 4 Wigmore on Evid., see. 2395.
   FOX, J.

This cause is here upon appeal from a judgment of the Howell Circuit Court convicting the defendant of manslaughter of the fourth degree. The information upon which this judgment rests was properly verified, and omitting formal part, is as follows:

“M. E. Morrow, prosecuting attorney within and for the county of Howell in the.State of Missouri,.informs the court that one Isom Morgan, on the 2d day of August, A. D. 1904, at the said county of Howell, in and upon one Thomas Morgan then and there being, feloniously, willfully, deliberately, premeditatedly and of his malice aforethought, did make an assault,' and with a certain knife which he, the said Isom Morgan, in his two hands then and there had and held, him, the said Thomas Morgan, feloniously, willfully, deliberately, premeditatedly and of his malice aforethought, did strike, stab and thrust in and upon the side of the body, giving to the said Thomas Morgan then and there, with the knife aforesaid, in and upon the side of the body of him, the said Thomas Morgan, one mortal wound, of the length of one inch, of the breadth of one inch, and the depth of three inches, of which said mortal wound the said Thomas Morgan then and there died, and so the prosecuting attorney aforesaid says and charges that the said Isom Morgan, him,' the said Thomas Morgan, in the manner and by the means aforesaid, feloniously, willfully, deliberately, premeditatedly and of his malice aforethought did kill and murder, against the peace and dignity of the State.”

■ Prior to the trial the prosecuting attorney elected to prosecute defendant for murder of the second degree, instead of murder of the first degree, which is attempted to be charged in the information. Defendant entered his plea of not guilty and the trial proceeded.

The evidence on the part of the State tends to show substantially the following state of facts: That the defendant lived on a farm which cornered with the farm of deceased, and the defendant’s dwelling was near to said corner. That on the afternoon of the homicide the deceased was working in his tobacco patch near defendant’s fence, hoeing tobacco. That the defendant sent his children to run off some cattle belonging to one Chestnut, and deceased stopped said children, threatened to whip them, and ordered them back to defendant’s house. This seemed to anger defendant, who went down towards the tobacco patch, climbed two fences and soon got in a quarrel with deceased. As to what occurred during the fatal difficulty, defendant stated to James Chestnut and J. S. Griffith that the devil had got into him (defendant) and had been for a week; that he got mad because deceased had threatened to whip his (defendant’s) boy for dogging some cattle; and that he went down to the tobacco patch intending to stomp deceased into the earth; that he told deceased what he thought of him, and deceased came at defendant with a hoe. That after deceased struck defendant with the hoe, defendant drew his knife and deceased drew his knife. Then both agreed to put up their knives, and had a fight, first one on top and then the other. That deceased agreed to quit if defendant would let him up. That defendant did so, and deceased got up, walked off a short distance and fell. Mr. Chestnut further testified that defendant said that when he first drew his knife, he thought he would rip deceased’s guts out, and then he concluded he would not. Shortly after the cutting, 'defendant’s wife and others came, arriving at the tobacco patch about the time of the death of deceased. The body was found some twelve steps from the fence; and the blood on the ground and the condition of the ground indicated that there had been a struggle there. There were three wounds on deceased; two were on his arm, and the other on his left breast.

The evidence for the defendant tended to show that he and deceased were not on friendly terms; that they had had frequent quarrels and fights. That deceased, who was a member of the Holiness church, and quite religiously inclined, tried to impose on defendant and tried to boss defendant’s children. That deceased had often threatened defendant and on two different occasions outsiders had to intervene and prevent deceased from injuring defendant. There was also evidence to the effect that deceased was a man of bad reputation, so far as peace and order were concerned. The defendant testified that he was at his house when he discovered Chestnut’s cattle come up to this fence, so he sent his children with a pup down there to run them off. The children soon returned, saying that deceased would not let them run the cattle and threatened to whip them. That defendant thought he would go down there and reason with deceased; so he climbed upon the fence and asked deceased who gave him authority to do that. That deceased replied that no one did, he took it on himself, and that he would whip the children if he ever caught them out in the lane. That one word brought on another till deceased started at defendant with a hoe. The defendant told deceased that he (defendant) was not afraid of deceased, althrough deceased had run over and abused him. That he asked deceased to put down the hoe and have a fair fight, which deceased did. That deceased then got out his knife, and defendant told him to put up his knife, and have a fair fight. Deceased did so, but picked up the hoe again, and defendant got excited, drew his knife and started at deceased. That in the scuffle that followed deceased struck defendant with the hoe, and defendant struck deceased three times with the knife. Deceased called for help and defendant agreed to let him up if he (deceased) would go away and quit. Deceased got up, walked off a little way and sank down. Defendant then picked up deceased and called for help, and defendant’s wife soon came. An examination was made of the clothes worn by deceased, and a pocket-knife and sack of tobacco were found in his pocket.

In rebuttal, the State’s evidence tended to show that the deceased enjoyed a good reputation as a peaceable man; and that the reputation for veracity of Thomas Willis, one of defendant’s witnesses, was not good.

At the close of the evidence the court instructed the jury upon murder of the second degree and manslaughter of thejourth degree. Upon the canse being submitted to the jury they returned a verdict of guilty of manslaughter in the fourth degree, hut failed to agree upon the punishment to be assessed, whereupon the court, in pursuance to the provisions of the statute authorizing it to assess the punishment, upon the failure of the jury so to do, assessed defendant’s punishment at imprisonment in the penitentiary for a term of two years. Motion for new trial was timely filed and by the court overruled. Sentence and judgment were entered in accordance with the verdict and the assessment of punishment by the court, and from this judgment defendant prosecuted his appeal to this court and the record is now before us for consideration.

OPINION.

The record in this cause discloses three legal propositions for consideration:

1. It is insisted that the testimony of Rev. James Chestnut, who testified to statements made to him by the defendant, were inadmissible under the provisions of the statute which render incompetent any minister of the gospel or priest of any denomination, concerning a confession made to him in his professional character, in the course of discipline enjoined by the rules of practice of such denomination.
2. That the court erroneously declared the law upon the facts developed at the trial.
3. That the information is insufficient to support the verdict and judgment in this cause.

I. Upon the first proposition it is sufficient to say that we have carefully read the testimony of the minister, Mr. Chestnut, and it is manifest that the statements of the defendant, about which he gave testimony, do not fall within the provisions of the section of the statute relied upon by appellant. While it may he said that the witness was a minister and preached in the community where the alleged crime was committed, there is an entire absence of any showing in the record that the defendant even belonged to the same religions denomination that the minister did, or that the defendant belonged to any religious denomination. There is nothing appearing in the testimony of this minister that the statements made to him by the defendant were made to the minister in his professional character, nor in the course of any discipline enjoined by the rules of practice of the denomination to which the minister belonged, or to any other denomination. The terms of the statute make manifest the only rule which can be applied to statements of the character now under discussion. It is expressly provided that, in order to make statements to a minister of the gospel or priest of any denomination inadmissible, such statements must be made to such minister or priest in his professsional character in the course of discipline enjoined by the rules of practice of such denomination. Mr. Wharton in his Law of Evidence, in speaking of a statute similar to section 4659-, Revised Statutes 1899, thus lays down the rule: “Under these statutes, however, a communication, to be privileged, must be made by a penitent as an enjoined religious discipline to a priest, and do not cover a confession made to a clergyman not in the course of such discipline.” [1 Whar. Law of Ev. (3 Ed.), sec. 597.]

In the ease of Knight v. Lee, 80 Ind. l. c. 203, under a statute of that State, which in all essential particulars is like the statute of this State, the Supreme Court of Indiana, in discussing this statute, said: “The confessions, concerning which clergymen are incompetent to testify, are, evidently, such as are penitential in their character, or as are made to clergymen in obedience to some supposed religious- duty or obligation, and do not embrace communic ations to clergymen, ho / ever confidential, when not made in connection with o¡ in discharge of some such supposed religious duty or obligation; or when made to them while in the discharge of duties other than those which pertain to the office of a clergyman. We are, therefore, of the opinion that the court did not err in permitting Bryant to testify, as he did, over the objection of the defendant.” To the same effect is G-illooley v. State, 58 Ind. 182. It was expressly ruled in that case that statements made to a minister not concerning any confession made to him in the course of discipline enjoined by the church, were not inadmissible on -the simple ground that the statements were made to a minister. The rule as to evidence of this character is also clearly stated in 4 Wig-more on Evidence, sec. 2395, which is fully in accord with the doctrine as herein indicated, announced by other authorities.

We see no necessity for pursuing this subject further, for if the terms of the statute are to he construed to mean what they say, then that the testimony of Mr. Chestnut in this case does not fall within the inhibition of the provisions of that statute, is too clear for discussion.

II. It is next complained that the court erroneously declared the law upon the facts developed at the trial. Under the well-settled rules of practice, as has frequently been announced by this court, in order to warrant this court in reviewing an assignment of error, the error complained of must he properly preserved by timely objections and exceptions to the action of the court upon the subject before it. The record before us in this case discloses an entire absence of any objections or exceptions to the giving or refusing of declarations of law, hence following the rule as has been repeatedly announced by this court upon that question, the errors complained of in respect to the declarations of law are not before us for review.

III. This leads us to the consideration of the only remaining proposition, that is, as to the sufficiency of the information to support the verdict and judgment.

It is sufficient to say upon this proposition that while this information does mot conform to the legal requirements announced in State v. Dawson, 187 Mo. 60, and State v. Coleman, 186 Mo. l. c. 164, in charging murder in the first degree, for the reason that it omits in the closing part of the information to charge that it was upon the oath of the prosecuting officer, which was deemed essential in cases of information for murder,' in the cases above cited; however, in those same cases it was expressly ruled that even with that omission the information or indictment would he sufficient to charge manslaughter.

We have indicated substantially the facts developed at the trial, and the cause was properly submitted to the jury upon the facts. There is ample testimony to support the finding and verdict of the jury, and finding no reversible error the judgment of the trial court should he affirmed, and it is so ordered.

All concur.