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    THE STATE v. ALBERT MARTIN and WILLIAM SNEED, Appellants.
    Division Two,
    March 15, 1910.

    1. INFORMATION: False Pretense: Sufficiency: Felony. An. information -which fails to charge that the alleged false pretense was “designedly” used to obtain the money or other valuable thing, is insufficient to charge an offense under Sec. 1927, R. S. 1899. But if it does not follow the form prescribed by Sec. 2213, but sets forth with particularity, as the information in this ease does, the trick and deception and fraudulent representation made by tbe defendant, it sufficiently charges the offense denounced by said section 2213, and charges a felony, and not a misdemeanor, though the amount of money or other valuable thing by the fraudulent representations obtained was of less value than thirty dollars.
    2. FALSE 'PRETENSE: Manner by Which Defrauded Person Obtained Money. It matters not how the defrauded person obtained the money of which defendants defrauded him. Even if he had not obtained it at all, but felt that he owed it to Wilcox, because he had trespassed upon Wilcox’s land and cut ties and timber therefrom, and was induced by the false pretenses and representations of defendants to pay the money he thought he owed Wilcox to one of the defendants, supposing and believing he was paying it to Wilcox, defendants are chargeable with the offense, and the court properly refused an instruction telling the jury that if the money paid by the defrauded person to one of the defendants was for the purpose of preventing a criminal prosecution against him for cutting timber from the lands of Wilcox they should acquit defendants.
    3. INSTRUCTION: Refusing Defendant's. Where the court has of its own motion given full and proper instructions upon the subject of the credibility of the witnesses, including the defendant who was a co-conspirator, it is not error to refuse an instruction asked by defendant upon the same subject.
    4. VARIANCE IN NAME. Where the defendant was indicted under the name of Albert Martin, and the evidence points unerringly to Albert Martin as the guilty party, the fact that either in the stenographer’s notes or in an inadvertent mistake by the prosecuting attorney in asking questions, the name Robert Martin was occasionally used, is an immaterial variance, and will not work a reversal. [Sec. 2534, R. S. 1899.]
    Appeal from Maries Circuit Court. — How. Wm. H. Martin, Judge.
    Affirmed.

      Pope & Terrill, Jos. Crites and Watson é Holmes for appellant.
    (1) We do not know of any section of the statutes under which the information could have heen drafted except 1927 or 1930. The amount charged to have been obtained was less than $30 and could be no greater offense than petit larceny. R. S. 1899, sec. 1910; State v. Brossler, 139' Mo. 524; State v. Pickett, 174 Mo. 663; State v. Keyes, 196 Mo. 136; State v. Anderson, 186 Mo. 25.- (2) The charge in the information is that defendants represented to W. D. Bull that James Denton was D. B. Wilcox, and thereby enabled Denton to-procure fifteen dollars from Bull. The evidence is to the same effect. There is no evidence that defendants received any part of the money. Under the information and evidence no crime was proven against defendants and they should have been acquitted. State v. Schaeffer, 89 Mo. 271; State v. Cameron, 117 Mo. 641; State v. Newell, 1 Mo. 248; State v. Evers, 49 Mo. 542; State v. Praker, 148 Mo. 143; State v. Wilson, 143 Mo.. 334; State v. Davis, 138 Mo. 107; State v. Lawrence, 178 Mo. 350; State v. Bohle, 182 Mo. 58. (3) This case does not come within the meaning" of section 2213, R. S. 1899. State v. McChesney, 90 Mo. 120; State v. Cameron, 117 Mo. 641. (4) In this case the evidence disclosed the fact that Bull had been stealing timber from a tract of land known as the D. B. Wilcox tract, or had been charged with stealing timber from such tract, and the money paid was’ to prevent a prosecution therefor. Such being the case, instruction “C” should have been given.

      Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.
    (1) (a) The information is drawn under section 2213, R. S. 1899, and is not based on section 1927 or 1930. The defendants having violated one or more-sections of the statute, with different punishments affixed, it does not lie in their mouths to say under which statute they shall be charged and tried. That is for the State to say. The information is sufficient. State v. Beaucleigh, 92 Mo. 490; State v. Williams, 77 Mo. 310; State v. Porter, 75 Mo. 171; State v. Williams, 12 Mo. App. 415; State v. McNerney, 118 Mo. App. 60. (b) The information sufficiently identitled the name of the victim. State v. McChesney, 90 Mo. 120. And meets the objection contained in the following cases: State v. Pickett, 174 Mo. 663; State v. Hesseltine, 130 Mo. 468; State v. Clay, 100 Mo. 578; State v. Terry, 109 Mo. 601; State v. Jan-son, 80 Mo. 97. (e) Acts of a defendant similar to the one for which he is being tried, committed near the same time and at the same place, are admissible against him to show the intent with which the act charged was done. State v. Keyes, 196 Mo. 147; State v. Wilson, 143 Mo. 334; State v. Turley, 142 Mo. 403; State v. Sarony, 95 Mo. 352. (2) (a) The test is whether or not the defendant could plead in bar the judgment- rendered against him, be it either a conviction or acquittal. State v. Woodward, 156 Mo. 147. All the elements necessary to charge the crime are laid in this information and the constitutional provision is complied with. Constitution, art. 2, sec. 22; State v. Vorback, 66 Mo. 168. And is unlike the cases of State v. Terry, 109 Mo. 601; State v. Benson, 110 Mo. 18; State v. Hubbard, 170 Mo. 346. (b) The assuming of a false name, or even a fictitious one may be a false pretense if thereby the fraud is accomplished. 2 Bishop’s New Crim. Law, sec. 4401, p. 254. The information in this ease meets every requirement of the Constitution. It sets forth the exact nature of the false representations made by the defendant, minutely and in detail, and identifies the victim, and in every way describes the offense. State v. Cameron, 117 Mo. 376; State v. Fancher, 71 Mo. 460; State v. McChesney, -90 Mo. 120; State v. Horn, 93 Mo. 190; State v. Beaucleigh, 92 Mo. 490; State v. Connelly, 73 Mo. 235; 'State v. Crooker, 95 Mo. 389; State v. Terry, 109 ■Mo. 601; State v. Jackson, 112 Mo.' 585; State v. Sarony, 95 Mo. 349. This was the same Albert Martin, the appellant. (3) Section 2533, R. S. 1899, is constitutional. State v. Schricker, 29 Mo. 265; R. S. 18991, ■ sec. 2534. Variance between the pleading and proof will not operate as a reversal of the case. State v. Sharp, 71 Mo. 218; State v. Smith, 80 Mo. 520; State v. Harl, 137 Mo. 252. Variance, under the statute, is properly confided to the trial court. State v. Decker, 217 Mo. 320; State v. Humble, 34 Mo. App. 347; State v. Black, 12 Mo. App. 534; State v. Stone, 15 Mo. 512; Weaver v. McElhenon, 13 Mo. 91; State v. Haveley, 21 Mo. 500; Rex v. Foster, 1 B. O. 412; State v. Riley, 100 Mo. 498; R. S. 1899, sec, 2535. (4) A variance is an essential difference between the pleading and the proof. There was no such difference between the charge in the information and the evidence in this case. Mulligan v. U. S., 120 Fed. 98; Skinner v. Grant, 12 Vt. 456. A party objecting to the variance between the pleadings and the proof must make his objection at the proper time during the trial, and if he does not do so, he cannot afterward avail himself of the objection. Kruger v. State, 135 Ind. 575; Graves v. State, 121 Ind. 357. A variance is understood to be a substantial departure from the issue in the evidence adduced, and must be in some matter in point of law essential to the charge or claim. 29 Am. and Eng. Ency. Law (2 Ed.), p. 580'. Even-a mistake in a verdict by writing the defendant’s name “Farmness” instead of “Framness,” was held to be immaterial. State v. Framness, 43 Minn. 490. We reassert the trial court settled the matter contained in appellant’s motion for rehearing.

       Note. — Affirmed May 18, 1909. Motion.for rehearing filed, and motion sustained July 13, 1909. Judgment again affirmed March 15, 1910, and additional opinion filed.

   GANTT, P. J.

This is an appeal from a conviction and sentence of the circuit court of Maries county. On the 5th of October, 1908, the prosecuting attorney of said county filed an amended information charging the defendants, together with James Denton and Lafayette Sneed, with the crime of obtaining money by means of false and fraudulent representations. The cause was dismissed as to Denton and Lafayette Sneed, and the defendants Albert Martin and William Sneed were found guilty and their punishment assessed at three years in the penitentiary. Inasmuch as one of the principal questions arising in the case is whether the information charges a felony or a misdemeanor, it will be necessary to set it forth. The information, omitting the caption, is in these words:

“Joseph W. Mosby, prosecuting attorney within and for the county of Maries in the State of Missouri, upon his oath of office informs the court that heretofore, to-wit, on or about the 9th day of November, 1907, and long prior thereto, at the county of Maries and State of Missouri, one D. B., Wilcox, was the owner of a certain tract of land situate, lying and being in said county of Maries in the State of Missouri, described as follows, to-wit:
“The west half of section twenty-eight, and the west half of the southeast quarter of section twenty-eight, the northwest quarter of section thirty-three, and the south half of section thirty-three, all in township thirty-nine of range ten.
• “And that the said D. B. Wilcox, as the owner of said tract of land, was then and there entitled to have and receive from one W. D. Bull, a certain sum of money, to-wit, the sum of fifteen dollars, on account of and for timber which the said W. D. Bull had theretofore cut and removed from said tract of land, and that on the said 9th day of November, 1907, at the said county of Maries and State aforesaid, James S. Denton, Albert Martin, William Sneed and Lafayette Sneed, with the intent then and there unlawfully and feloniously to cheat and defraud the said W. D. Bull, then and there unlawfully, knowingly and feloniously did falsely and fraudulently represent, state and pretend to the said W. D. Bull that the said James S. Denton was then and there the said D. B. Wilcox, the owner of the said described tract of land, and that he, the said James S. Denton, so falsely and fraudulently represented as the said D. B. Wilcox, as aforesaid, was then and there entitled to have and receive from the said W. D. Bull the said sum of fifteen dollars on account of and for timber which the said W. D. Bull had cut and removed from the said tract of land aforesaid, and that the said W. D. Bull believed said false and fraudulent representation, statements, and pretenses, so made as aforesaid by the said James S.' Denton, Albert Martin, "William Sneed and Lafayette Sneed, to be true, and being deceived thereby, was induced by reason thereof to then and there pay, and did pay, to said James S. Denton the said sum of money, to-wit, the sum of fifteen dollars, and that the said James Denton, Albert Martin, William Sneed and Lafayette Sneed by means and by use of the said false and fraudulent representations, statements and pretenses so made as aforesaid, then and there unlawfully, knowingly and feloniously did obtain from him, the said W. D. Bull, the said sum of fifteen dollars, in money of the value of fifteen dollars, the property and money of him, the said W. D. Bull then and there being, with the intent then and there unlawfully and feloniously to cheat and defraud him, the said W. D. Bull, of the same, whereas, in truth and in fact, the said James S. Denton, was not the said D. B. Wilcox, and was not the owner of the said described land, and the said James S. Denton, Albert Martin, William Sneed and Lafayette Sneed, or either of them, did not then and there have any right or authority whatever to collect, have or receive from the said W. D. Bull the said sum of fifteen dollars in money or any part thereof, for or on account of timber cut and removed from said tract of land by said W. D. Bull, or on any account whatever. And the said James S. Denton, Albert Martin, William Sneed and Lafayette Sneed, then and there well knew the said false and fraudulent representations, statements and pretenses, made as aforesaid, to be false j against the peace and dignity of the Státe,” etc,

It appeared from the testimony that on and prior to the 9th of November, 1907, one D. B. Wilcox, a nonresident of the State of Missouri, was the owner, or at least the reputed owner, of about nine hundred acres of land in sections 28 and 33, township 39, range 10,-in Maries county, Missouri; that said Wilcox was unknown in the neighborhood of said land; that W. D. Bull, John Bull, Richard Blackwell, Thomas Hanks and defendants Albert Martin, William Sneed and Lafayette Sneed, all lived in the neighborhood of this land in Dry Creek township of said county; that said land was timbered land; that W. D. Bull had gone upon said land, either by mistake or as a trespasser, and cut enough timber to make at least fifteen railroad ties, without any' authority from the owner of said land, or any one having authority over the same. It also appeared that other neighbors of Bull had in’ the same manner cut timber on these lands; that'the defendants, Martin and Sneed, conceived of a fraudulent scheme whereby Denton, who lived in the city of Rolla, in Phelps county, and who was at the time a stranger in Dry Creek township, should represent himself as D. B. Wilcox; that the defendants, Martin and Sneed, and Lafayette Sneed designed to have Denton go to Maries county and into said Dry Creek township in the neighborhood of this land and represent himself to W. D. Bull, as well as to other parties in the neighborhood, to be the true owner of the said lands and to represent himself to be D. B. Wilcox, with the intent to cheat, wrong and defraud said W. D. Bull, by settlements and compromises for the timber cut by Bull, and obtain from said Bull the price of the timber, and to also obtain moneys for the same purpose from the other parties who had cut timber on said lands. It transpired from the testimony that Denton was successful in personating Wilcox and in obtaining from W. D. Bull ten dollars in money and five dollars in services, and also obtaining from other neighbors in the neighborhood for timber so cut on said land and for the purpose of avoiding criminal prosecutions against them, in total $115, which sum Denton divided equally between the defendants, Martin and Sneed, and himself. Denton was not the owner of the land nor any part of it, and never had owned it and was a stranger in the neighborhood and a stranger to the land.

t. Before proceeding to an examination of the other alleged errors, the first proposition presented by the defendants is that this is a prosecution either under section 1927 or 1930, Revised Statutes 1899, and consequently that the offense, conceding the guilt of the defendants, is but a misdemeanor and punishable only as petit larceny, whereas, the court construed the indictment as charging an offense under section 2213, Revised Statutes 1899, and consequently a felony, and accordingly instructed the jury, and the jury assessed their punishment as and for a felony and they were sentenced to the penitentiary for a period of three years each.

The statute law of this State on the subject of obtaining money by means of false and fraudulent representations, until 1879, was incorporated in what is now known as section 1927, Revised Statutes 1899. It'was first enacted by the Territorial Legislature in 1808. Under this section it has been ruled that the guilty party was liable to be punished by imprisonment in ’the penitentiary if the amount of money or property obtained by the false pretense was such as would havé sustained a conviction for grand larceny, had he stolen it, and if less he is punishable as for petit larceny. In State v. Pickett, 174 Mo. 663, this section was brought in juxtaposition with section 2213 of the same revision, and it was pointed out that under section 1927 the false pretense must have been “designedly” used to obtain the money or other valuable thing, and that this phrase could not be omitted without vitiating the indictment, whereas under section 2213, the money or other valuable thing must be obtained “by means of or by use of some trick, deception or some false pretense,” etc. It is pointed out in that case also that this court has time and again held that the form of indictment prescribed in this section is unconstitutional. [State v. Terry, 109 Mo. 601; State v. Kain, 118 Mo. 5.] In State v. McChesney, 90 Mo. 120, it was ruled that where the statutory form was insufficient, as we have repeatedly held the form prescribed in section 2213 to be, “the pleader must draw his indictment according to the rules of the common law and these rules would require him to set forth with particularity ‘the trick, deception, or false and fraudulent representations,’ so'that the accused would be informed sufficiently of the cause and nature of the accusation by the particular description of the trick, device, or false pretense contained in the indictment.”

If we are to follow the decision in State v. Pickett, supra, we think it is apparent that the information in this case is insufficient to charge an offense under section 1927, as it utterly fails to charge that the alleged false pretense was “designedly” used to obtain the money or other valuable thing.

Does it sufficiently charge an offense under section 2213? It will be seen that the pleader by way of inducement states the exact relationship of all the parties, the ownership of the land by Wilcox, the cutting of the timber thereon by Bull without authority of law and the false and fraudulent representation . of the defendants to Bull that Denton, one of their co-conspirators, was then and there Wilcox, the owner of the said described tract of land, and was entitled to have and receive from Bull $15 on account of and for the timber which Bull had cut and removed from said tract, and that Bull believing said false and fraudulent representation and pretenses and being deceived thereby, was induced by means thereof then and there to pay and did pay Denton the said sum of fifteen dollars, and that the defendants “by means and by use of the said false and fraudulent representation, statements and pretenses so made as aforesaid, then and there unlawfully, knowingly and feloniously did obtain from him, the said Bull, the said fifteen dollars with the intent then and there feloniously to' cheat and defraud him.” Thus it, would seem that the pleader rejected the statutory form in 2213, and set forth with particularity the trick and deception and fraudulent representation made by the defendants to Bull by means of which they obtained his money. It seems to us, the pleader has stated every constituent element of the statute and has used all the statutory language which individuates this offense. In our opinion the information sufficiently charges an offense under section 2213. [State v. Woodward, 156 Mo. 143.] Under this section of the statute, it is sufficient if the defendant obtains any money, property or valuable thing whatever, - so that it is not necessary that the information should charge the property to be of the value of thirty dollars in order to constitute the offense a felony.

II. As to the second assignment of error, to-wit, that there was no evidence that defendants received any part of the money paid by Bull to Denton, counsel have evidently overlooked the record. Denton testified positively that he paid Sneed and Martin each one-third of the $115, including that which he had received from Bull and from the other parties in the neighborhood, who had been cutting the timber on this land.

III. It is insisted that the court erred in refusing the following instruction:

“The court instructs the jury that if they believe from the evidence that "the money paid by W. D. Bull to James Denton was for the purpose of preventing a criminal prosecution against him for cutting timber from the lands of David B. Wilcox, then they should find defendants not guilty. ”

Upon what theory the defendants insist upon this instruction, we are not advised. Concede that Bull and his neighbors had been trespassing upon the lands of Wilcox and cutting the timber thereon without authority, and that they might have been prosecuted criminally therefor, how does it lessen the offense of these defendants, who were not the owners of the land and timber, that, seizing upon their knowledge of the illegal taking of the timber, they concocted the scheme of extorting money from Bull and his neighbors by representing Denton to be Wilcox and causing him to make a demand for payment for the timber, which neither he nor they were entitled to.' We think the court properly brushed aside this instruction. Whateyer offense Bull was guilty of, it formed no justification for the criminal conduct of these defendants in extorting money from him by means of the false and fraudulent representations and fraudulent simulation of Mr. Wilcox.'

IV. The refusal of the following instruction is assigned as error:

“The court instructs the jury that there is no evidence to prove that W. D. Bull cut any timber from the lands described in the information and they will therefore acquit the defendants.”

This instruction was properly refused because Bull .testified that he had cut ties from the Wilcox land. And knowing that he had, he fell an easy victim to the fraudulent scheme of the defendants, who were also cognizant of his cutting the timber.

V. Defendants also challenge the instructions given by the court upon the ground that they permitted the jury to find the defendants guilty of a felony. No other error is predicated on the court’s instruction. A careful reading of them indicates that they were prepared with much care and with a due regard to the rights of both the State and the defendants. For the reasons given in the first paragraph of this opinion, the court did not err in instructing the jury that, if they found the facts stated in the information and instructions, then the defendants were guilty of felony and punishable by imprisonment in the penitentiary.

YI. There was no error in refusing the instruction designated as “E” for the. reason that the subject of the credibility of the witnesses, including Den-ton, was fully covered by instructions number 10 and 11 given by the court of its own motion.

Discovering no reversible error in the record and the proceedings the judgment of the circuit court must be and is affirmed.

Burgess and Fox, JJ., concur.

ON MOTION FOR REHEARING.

At the April term, 1909', this cause was argued and decided and the judgment affirmed against both the defendant Albert Martin and William Sneed. Separate motions for rehearing were filed and the motion of Sneed was overruled, and the motion of the defendant Martin was sustained, and the cause set down for rehearing, in order that the record might be re-examined as to whether the defendant Albert ■ Martin was identified by the testimony as one of the parties who had conspired with the said Denton and obtained the money of the said Bull and the other parties who had cut the timber, by means of the fraudulent representations and pretenses. The cause was reheard and submitted upon new briefs by counsel for Martin, in which it was earnestly insisted that the defendant Albert Martin was not identified as one of the conspirators, but that one Robert Martin was tbe guilty-party.

Addressing ourselves now to tbis contention, we find in the evidence of Bull, tbe following: “Q. Are you acquainted with Albert Martin? A. Yes, sir.” It will be borne in mind that tbe defendant Albert Martin was then on trial and present in court. "He was then asked if be saw “William Sneed, Alvin Sneed, Robert Martin, Ralph Wilcox or James Denton on tbe 19th of November, 1907. A. All but Alvin Sneed.”

Thereupon James Denton was called as a witness, and it appears that be was asked tbis question: “You are acquainted with Robert Martin? A. Yes, sir. Q. William Sneed? A. Yes, sir. Q. Alvin? A. Yes, sir. Q. How long have you been acquainted with these three men? A. I have known Martin for tbe last five years, Mr. Sneed for tbe last year, I do not know exactly.” Later on Denton testified: “Sneed then asked me if I knew Robert Martin; then be began to tell me, in tbe presence of Chas. Davis, what bis business was and what a fine thing be bad of making some money. He said there was some fellows making ties on land up close to bis home, on land belonging to a man in California and another man in Detroit, Michigan, and then be asked me if I would come and pass myself off in tbe name of Wilcox and make these fellows compromise for chopping tbe ties, so I told him that I would not do that, and-be says; ‘All right.’ Then be goes away and comes back later on, I do not know tbe exact date. He comes back again and asks me and I refuse again. Then be comes tbe third time and asks me and I said I would. He gave me fifty cents to pay my way to Dixon, which fare is forty cents. He told me Robert Martin bad made tbe other arrangements, and that be would meet me at Dixon and give me tbe plans of the grounds they bad chopped the ties on. I came to Dixon and met Martin. He punched me in tbe side and said, ‘It will not do for us to be here together,’ and so we walked towards the lumber yard. There were three men sitting twenty-five feet of me and one of them looked like he w.as the owner of the lumber yard. The men went away and Robert began to talk to me. He told me to go to the livery stable and get a horse and ride it over. I told him I was afraid to get it there and I believed I would go to the hill and catch an engine and go back, he says: ‘ You are a fool, them suckers are easy. There is some of the s— of b— there now, hauling ties across the track.’ Well, I told him I would go up there and see about the horse, but I did not ask. the man at all, and came back and told him the livery man would not let me have a horse and I found Robert by the side of the well, his team was standing in the meantime hitched to the rack, so he says, ‘You walk out of Dixon and I will overtake you and you can ride with me.’ So I walked about a mile and he overtook me. He had in his wagon a barrel of nails, said he was going to build a new house. We passed several people, a man and a lady. Then as we was going out he gave me a list of the gentlemen that had been chopping and he says, ‘Copy this off on another piece of paper, because they will recognize my handwriting.’ He told me to go down to Sneed’s house and stay all night, then he told me to go down to the first house on the right of the road, and he let me off the wagon, and I went down to the house. He introduced me as Wilcox, who had come to see about the timber that had been chopped on my grounds.' After supper we walked out in the yard and I told Sneed that Martin told me to tell him to chop the telephone wires, he replied he would do that after we went to bed, so next morning Sneed told me to go down and have William Bull go around with me, but I told him I would not do that as I did not know him.”

Later on in his testimony, Denton testified to receiving the money from Bull and from another party who brought the money to him that evening at Sneed’s house. “Q. Who was there when he paid you the money? A. Albert Martin and Willie Sneed. Q. Then where did you go? We went a couple of miles in the woods to Eichard Blackwell’s.” He then detailed how he went to the house of the other parties and-that Blackwell and another man named Bull did not have the money, but said they would bring it to Will Sneed’s house. These last mentioned two brought the money to Sneed’s house and Will Sneed and Albert Martin were there, and he took the thirty dollars and wrote them a receipt for it and they left and went away. He was asked then what he next did, and answered, “Well, we were making plans as to how I would get away from there that night so we went down in the woods Martin and Sneed and I and we divided up the money which I had collected, I had collected $115. I gave them two-thirds and I kept one-third. They thought I had better get out right away and decided that I would ride behind Martin on his black horse. So Martin took me on to the road and he got behind me on the horse. He says, ‘If we meet anybody, we will go so fast they will not see us or cannot tell who we are, and Eobert jumped off the horse and ran around in the woods and overtook me again a little further on the road, and when we got near Dixon, he got hold of an old rail and struck the telephone wire two or three times and broke it. I judge this was about two and a half miles from Dixon. He took me in sight of Dixon. This is as far as I went.”

He testified further that Mr. Martin gave him a plat and said he got it from Mr. Holmes of Vienna, a relative of Mr. Holmes of Eolia.

W. H. Holmes testified: “ Q. Are you acquainted with Albert Martin? A. Yes, sir. Q. I will ask you if you saw him in the month of November, 1907. A. Yes, sir, he came to me and asked me to make a plat of some land in Maries county, but I am not certain about tbe month now. I think it was long about that time. Q'.. What did you do with the plat that you made? A. I gave it to Mr. Martin. Q. Was William Sneed with Martin at that time? A. Sneed was not with him in the office, Martin came and asked for the plat and got the addresses of the parties that owned .the land from the collector’s files. I gave him the address of the men who paid the taxes on the land. Q. Did you see Sneed that day? A. Tes, sir, he was in town that day. Q. Was he with Robert Martin? A. Yes, both came to me, and I said it would take some time to make the plat and when they came back I think Sneed stayed out in the hall, he did not come in the office.”

James West testified: “Q'. Are you acquainted with Albert Martin? A. Yes,, sir. Q. How long have you known him? A. Fifteen years. Q. I will ask you whether you saw Albert Martin on the 18th of last November, 1907, on the road from Dixon to Vienna? A. I saw him there in November, but do not remember the exact date. Q. Do you remember when the trouble occurred, about the people getting into trouble for cutting timber out on Dry Creek? A. Yes, sir. Q. Was it about that time? A. It was the same week I heard about the trouble. Q. Where did you see him on the Dixon road that day? A. He was about three-fourths of a mile this side of Dixon. Q. Who, if any one, was with him? A. I do not know the man. He was a stranger with him. Q. How were they traveling? A. They were in a wagon.”

Mrs. Ethel Hanks testified that in November, 1907, she lived one and one half miles from Haden; she was acquainted with Albert Martin. “Q. I will ask if you remember seeing Albert Martin on the evening of November 18, 1908, pass along by your house in a wagon? A. Yes, sir. Q. What else was in the wagon? A.. He had a small barrel, this was late in the evening.”

Albert Blackwell testified that he was acquainted with Albert Martin and William Sneed. “I reside about one and one-half miles from Sneed’s and a couple of miles from Martin’s. They lived there on the 19th of October last. ’ ’ Remembered a man that passed himself off as Wilcox on the 19th of November, 1907. He saw this man at the sawmill at Tom Nelson’s farm that day. This man Wilcox came up to him and demanded fifteen dollars for cutting timber on his land. “I did not have any money and did not pay him, but went home and came back about five o’clock and had the money. He told me to come up to Sneed’s house. I went to Bill Sneed’s house and Albert Martin and a fellow that called himself Wilcox were there then. Bill Sneed was standing in front of the shanty. As I got pretty close Martin kept backing away, and then I paid Denton the money.”

John Bull testified that Denton, alias Wilcox, called on him on the 19th of November, 1907, at the sawmill and demanded fifteen dollars for chopping timber on his ground, and that he got the money and went to William Sneed’s that evening to pay him. Albert Blackwell, or Ebb Blackwell, and Robert Martin were there. This, was on the occasion that Albert Blackwell testified that Albert Martin was the Martin that was present at that time.

Robert Sneed testified that he was a cousin of the defendant William Sneed and lived in that neighborhood in November, 1907; that Denton, under the name of Wilcox, made a demand on him also for fifteen dollars for timber. That when he got to Mr. Will Sneed’s house that evening he saw Albert Blackwell and William Sneed, Martin and Bull, and this fellow they called James Denton; he then paid him the money and took his receipt.

Charles Davis testified that he lived in Rolla, Missouri, in November, 1907; was in the barber business. He was acquainted with Albert Martin and William Sneed, these two came to his shop together, at least he saw them there together before this difficulty.

This is sufficient reproduction of the testimony on this proposition. Keeping in view the fact that Albert Martin was one of the defendants in the case and that the court submitted to the jury the question whether the defendants Albert Martin and William Sneed conspired with James Denton to obtain the money and property of W; D. Bull by means of the false pretenses, and that the jury responded to the instruction by finding, not that Robert Martin was a party to the said fraudulent scheme, but that the defendant Albert Martin was, the question is now, whether the misnomer of the defendant Albert Martin by the style of Robert Martin entitled him to a reversal of this judgment. A careful scrutiny of this evidence will show, we think, that the designation of the defendant as Robert by the stenographer in his notes was a clear mistake. Davis, the barber, in whose shop Denton worked in Rolla, testified to William Sneed and Albert Martin, the two defendants herein, coming to his shop to see Denton in November, 1907, before this fraudulent trick was perpetrated on these parties in Maries county. The evidence of Mrs, Hanks corroborated that of Den-ton to the effect that, on the day before this fraudulent device was carried into effect in that neighborhood, she saw Albert Martin, whom she knew well, coming along the road from Dixon, in a wagon with a small barrel in it. Denton says he rode in that wagon with Martin and that the latter had a keg of nails in the wagon. That the Martin with whom Denton was riding was Albert Martin there was ample evidence to substantiate.

Robert Sneed paid his contribution to the scheme at William Sneed’s and the evidence of Albert Blackwell establishes that the defendant Albert Martin was present at that time with Denton and William Sneed. The calling of the defendant Robert Martin, by Den-ton, did not require the jury to find that he was other than Albert Martin when Albert Blackwell, who lived in the same neighborhood and knew him well, testifies that it was Albert Martin. Moreover, Denton testified that having collected $115 from their dupes in that neighborhood, he proceeded to divide the same with Albert Martin and William Sneed, the two defendants in this case. That Albert Martin, the defendant, was the Martin who was the master spirit in this conspiracy and who laid the plans is furthermore evidenced by the fact that this same Albert Martin went to Mr. Holmes in Vienna, the county seat of Maries county, and employed him to make him a map of the lands belonging to Wilcox and then procured the .names from the collector’s book of the owners of those lands. It is plain that the defendant, Albert Martin, was confused with this name of Robert Martin, either by the stenographer or the prosecuting attorney. Thus, Mr. Holmes having testified that he knew Albert Martin and at his request had prepared this plat of the land, was asked if he saw William Sneed that day in Vienna, and he said he did, and he was asked if he saw him with Robert Martin, and he answered, “Yes, they both came to me and I said it would take some time to make the plat.”. Now, clearly.it was Albert Martin for whom Mr. Holmes made the plat, and if the prosecuting attorney did inadvertently use the name Robert instead of Albert in his question to Sneed, the witness evidently did not understand that he was talking about a different person from Albert Martin. Now, this Albert Martin who obtained this plat in this way, gave it to his codefendant, Denton, with a list of the names of the trespassers, and it was this same Albert Martin and William Sneed who were present when Albert Blackwell went to William Sneed’s house and paid over the money to Denton, and it was this same Albert Martin a defendant in this case who was attempting to get out of view of Mr. Blackwell and not be seen in company with bis conspirators that evening. And Albert Martin was tbe man seen by James West on tbe evening before, riding in a wagon with Denton. ’ Denton testified that when Albert Martin gave bim tbe plat and tbe list of names, be told bim that Mr. Holmes had made a plat for him. He got it there in Vienna.

Claude Denton also testified that Albert Martin, the defendant, came to bim in tbe Arcade saloon and said, “If you will get your brother to play crazy and not appear against me, I will give you any thing you want.” He told bim to state tbe price and Claude said be could not do that.

That there was ample evidence to show that Albert Martin, tbe defendant, was one of tbe parties to this conspiracy, notwithstanding tbe fact that in some way tbe name of Robert has crept into tbe record at various places, we think there can be no doubt whatever. In fact there is no evidence that there ever was such a man as Robert Martin outside of tbe mere inaccurate designation of tbe defendant himself as such. This cause was prosecuted against Albert Martin and William Sneed, they were tbe defendants on trial and tbe evidence tends to show that they were tbe two parties who first conceived this crime and went to Rolla and procured tbe services of Denton, an ex-convict, in carrying it out. Notwithstanding tbe misnomer of “Robert,” there still remains ample evidence to show it was Albert Martin, tbe defendant in this cause, who went to Rolla and engaged James Denton at Dixon and took bim out in a wagon to Dry Creek. It was Albert Martin who procured tbe plat of tbe land of Holmes and gave tbe names of tbe trespassers who bad been cutting timber thereon, together with this plat, to James Denton, and furnished Wilcox’s name to Denton. There was no misnomer in bis name when be was recognized by tbe witnesses as being present at Sneed’s shanty when three of the victims came over and paid their money to Denton, nor was there any misnomer when Denton divided the $115 between Albert Martin and William Sneed and himself. 'It is significant that in the motion for new trial, the defendant nowhere suggests to the court that he had been convicted on evidence tending to show that one Robert Martin a different person had committed the crime and not the defendant. Neither was there an instruction asking’ that the jury should disregard the testimony as to Robert Martin.

Section 2534, Revised Statutes 1899, provides: “Whenever on the trial of any felony or misdemeanor, there shall appear to be any variance between the statement in the indictment or information and the evidence offered in proof thereof, in the Christian name or surname, or both Christian name and surname, or other description whatsoever, or any person whomsoever therein named or described, or in the name or description of any matter or thing whatsoever therein named or described, or in the ownership of any property named or described therein, such variance shall not be deemed grounds for an acquittal of the defendant, unless the court before which the trial shall be had shall find that' such variance is material to the merits of the case and prejudicial to the defense of the defendant.”

■ A careful reading of this whole testimony will show that at most this name of Robert was but a mistaken description or a variance in the name of the defendant Albert Martin who was on trial. Notwithstanding this misnomer of the defendant, the other evidence in the case points unerringly and conclusively to this defendant Albert Martin not only as one of the parties guilty of this fraudulent trick and device, but that he was the principal conspirator in the matter. Had this point, now made in this court for the first time, been called directly to the attention of the circuit court, that court would have been fully justified in holding that the variance was immaterial and did not prejudice the defendant. Having granted a rehearing of this cause in order that this evidence might be fully examined, we are of the opinion that the case was properly decided at the April term, 1909,' and that the evidence fully identified the defendant as one of the guilty parties with the fraudulent pretense and scheme by which the parties were fleeced out of their money.

Burgess and Fox, JJ., concur.


source: Caselaw Access Project

author: FOX, J.

license: Public Domain

text:
    THE STATE, Appellant, v. ARTHUR H. BLAKEMORE.
    Division Two,
    March 15, 1910.
    1. INDICTMENT: Embezzlement: Indefinite. The Indictment for embezzlement set out in the statement, is not so vague, indefinite and. uncertain that the defendant is unable to prepare his defense; on the contrary, it charges every essential element of the offense of embezzlement as defined by Sec. 1912, R. S. 1899.
    2. -: -: From Whom Money Was Collected. It is not essential _ to a valid indictment charging that a clerk by virtue of his employment “did have, receive and take into his possession and under his control, certain money” of an insurance company, that it should also inform the defendant from whom the money was collected. It is sufficient if it charges the oifense in the language of the statute. If it informs defendant that he is charged with being an agent and clerk of the insurance company, and as such he received and had in his possession certain moneys the property of the company, it gives him sufficient information to prepare his defense.
    3. -: -: ’ Character of Employer’s Business. It is not necessary that the indictment allege the character of business in which defendant’s employer was engaged. If defendant received the money as the clerk or agent of his employer, and embezzled or converted it to his own use, it is immaterial whether his employer was authorized to receive it or not.

      4. -: -; -: Foreign Corporation. Where the indictment charges that defendant embezzled money from a corporation organized under the laws of another State, it is not defective because it does not allege that such company was authorized by proper license to do business in this State; it is immaterial in such ease, whether the corporation was legally or illegally doing business in this State. Nor is it necessary, where such corporation is an insurance company, to allege that the money embezzled by defendant was received by the company in the transaction of insurance business.
    5. -: -: Illegal Purpose. One who, as an agent, clerk or employee receives money from another and embezzles and converts it to his own use, cannot set up as a defense against an indictment for embezzlement that his employer had illegally obtained the money.
    Appeal from St. Louis City Circuit Court. — Hon. Chas. C. Allen, Judge.
    Eeversed and remanded.

      Elliott W. Major, Attorney-General, and Jas. T. Blair, Assistant Attorney-General, for the State.
    (1) The indictment is, in both form and substance, practically identical with indictments heretofore approved by this court. State v. Wissing, 187 Mo. 99; State v. Shour, 196 Mo. 205; State v. Gebhardt, 219 Mo. 713; State v. Lipscomb, 160 Mo. 131; State v. Larew, 191 Mo. 194. (2) The allegation as to the money embezzled and its value, is sufficient. E. S.. 1899, sees. 2531, 2535. (3) It was not necessary to state the character of the business in which the corporation, named in the indictment as the owner of the embezzled money, was engaged. State v. Lipscomb, 160 Mo. 138 ; E. S. 1899, secs. 1912, 8000; State v. Whitworth, 30 Wash. 48; Taylor v. Com., 119 Ky. 743. (4)' The indictment follows the language of the statute. This is sufficient. State v. Mohr, 68 Mo. 304; State v. Lipscomb, 160 Mo. 138; State v. Larew, 191 Mo. 194; R. S. 1899, secs. 1912 and 8000. (5) Numerous objections to a similar indictment were answered in State v. Larew, 191 Mo. 194. (6) Tbe averment as to defendant’s agency is sufficiently definite. State v. Meyers, 68 Mo. 267. (7) One ground of tbe demurrer is tbat the “indictment does not allege tbat Tbe Reserve Loan Life Insurance Company was, or is, authorized to do business in tbe State of Missouri.” (Sec. 7883, R. S. 1899.) Tbe company is alleged to be. organized under tbe laws of Indiana. Tbe identical question presented has undergone judicial investigation heretofore. State v. Reynolds, 65 N. J. L. 426. Tbe statute requiring foreign corporations to take out license to do business in this State was not designed by “tbe General Assembly to make booty of tbe property of a corporation which does not comply with tbe provisions of tbe act.” State v. Poblmeyer, 59 Oh. St. 495; Com. v. Sbober, 3 Pa. Super. Ct. '557; R. S. 1899, sec. 7883. (8) Both the- agent who transacts business in this State for an unlicensed insurance company and such company maintaining agencies in tbe State, are liable to penalties under sections 8000 and 8002, R. S. 1899. (9) Tbe statute specifically points out what constitutes one an agent of a company not authorized to do business in Missouri. R. S. 1899, sec. 8000. (10) But though tbe insurance company ‘mentioned in tbe indictment be assumed to be without 'a license to do business in Missouri, and though it be assumed also tbat tbe particular money embezzled by defendant was obtained by him in tbe transaction for tbe company of business which tbe company was not authorized to transact in Missouri, and tbat tbe transaction itself was an offense, yet, under tbe decided cases, defendant could not escape on this ground. State v. Sbadd, 80 Mo. 362; State v. Cunningham,’ 154 Mo. 176; Insurance Co. v. Railroad, 149 Mo. 178; Com. v. Sbober, 3 Pa. Super. Ct. 557; State.v. Poblmeyer, 59 Ob. St. 496; State v. Silva, 130 Mo. 462; State v. Hoshor, 26 Wash. 654; State v. Whitworth, 30 Wash. .49; State v. Spaulding, 24 Kan. 8. (11) Unlicensed companies may lawfully transact certain business in Missouri. R. S. 1899', sec. 7996; Insurance Co. v. Railroad, 149 Mo. 178.' It would not do to assume, on motion to quash, that the company was unlicensed, and that the money collected was the proceeds of unauthorized business, etc., even if those facts, if specifically set up, would invalidate the indictments. No such facts are pleaded in the indictment in this case.

      Keith Ryan and Jesse A. Wolfort for respondent.
    (1) The Federal and State Constitutions provide, and it is the law of this State, that an indictment shall not be so indefinite and vague with regard to the particular offense charged as to deprive the accused of the opportunity to prepare a defense. Federal Constitution, amendment 6; Missouri Constitution, art. 2, sec. 22; 1 Chitty, Crim. Law, p. 169; May’s 'Crim. Law, chap. 2, 79, see. 100; State v. Stowe, 132 Mo. 199; State v. Burke, 151 Mo. 136; State v. Meysenburg, 171 Mo. 1; United States v. Cruikshank, 92 U. S. 542; State v. Barbee, 136 Mo. 440; State v. Terry, 109 Mo. 601; State v. McGinnis, 126 Mo. 564. (2) An indictment must describe the offense charged so clearly and particularly that the defendant may avail himself of it if he is again prosecuted for the same act or acts. Federal Constitution, amendment 5; Missouri Constitution, art. 2, sec. 23; May’s Crim. Law, chap. 2, sec. 100, p. 79; State v. Snyder, 98 Mo. 555. (3) If facts were unknown to the grand jury, the indictment should have so stated. State v. Stowe, 132 Mo. 199; State v. Burke, 151 Mo. 136; State v. Krueger, 134 Mo. 272; State v. Thompson, 137 Mo. 620. (4) Where fraud is charged, the facts making up the fraud must be pleaded. Hoester v. Sammelmann, 101 Mo. 619; Smith v. Sims, 77 Mo. 269; Nichols v. Stevens, 123 Mo. 96; Redpath v. Lawrence, 42 Mo. App. 101. (5) A foreign corporation can have no legal existence beyond the hounds of the State or sovereignty by which it is created. Under the foregoing principle and the law of the State, a foreign corporation must comply with and observe the laws of this State before it may engage in business in this State. Cleaton. v. Emery, 49 Mo. App. 345; Fay Fruit Co. v. McKinney, 103 Mo. App. 304; R. S. 1899, secs. 1024, 1025, 1026.
   FOX, J.

On December 4, 1908, the grand jury in and for the city of St. Louis, returned into open court an indictment, of which the following, the caption being omitted, is a copy:

“The grand jurors of the State of Missouri, within and for the body of the city of St. Louis, now here in court, duly impaneled, sworn and charged, upon their oath present: that Arthur H. Blakemore, on the fourth day of November, one thousand nine hundred and eight, at the city of St. Louis aforesaid, being then and there the agent, clerk, collector and servant of The Reserve Loan Life Insurance Company, a corporation duly organized and existing under the laws of the State of Indiana, the said Arthur H. Blakemore (not being then and there a person under the age of sixteen years), then and there by virtue of such employment and office of agent, clerk, collector and servant, as aforesaid, did have, receive and take into his possession and under his care and control, certain, money, to the amount and value of thirty-five and fifty-five one hundredths dollars, the same being then and there lawful money of the United States, of the value of thirty-five and fifty-five one hundredths dollars, the money and personal property of the said The Reserve Loan Life Insurance Company, a corporation, as aforesaid, the employer of him the said Arthur H. Blake-more, and that the said Arthur H. Blakemore, the said money then and there unlawfully, feloniously, fraudulently and intentionally did embezzle and convert to his own nse without the assent of the said The Reserve Loan Life Insurance Company, a corporation, as aforesaid, the owner of said money, and with the unlawful, felonious and fraudulent intent then and there to deprive the owner, the said The Reserve Loan Life Insurance Company, a corporation, as aforesaid, of the use thereof, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State.”

At the succeeding term, to which the cause had been continued, the defendant filed the following motion to quash:

“Comes now the defendant by his attorneys and moves the court to quash the indictment filed herein because:
“1. The facts alleged therein constitute no offense.
“2. The indictment does not allege in what business ‘The Reserve Loan Life Insurance Company’ was, or is, engaged in the State of Indiana, or any other state.
“3. That said indictment does not allege that ‘The Reserve Loan Life Insurance Company’ was, or is, authorized to do business in the State of Missouri.
“4. Said indictment is so indefinite and vague as to the alleged offense as to deprive the accused of the opportunity to prepare a defense.
“5. Said indictment violates the sixth amendment of the Federal Constitution, which provides: ‘In all criminal prosecutions the accused shall enjoy the right to be informed of the nature and cause of the accusation.’
“6. Said indictment violates section 22 of article 2 of the Constitution of the State of Missouri, which provides: ‘In criminal prosecutions the accused shall have the right to demand the nature and cause of the accusation.’
“7. Said indictment is so indefinite and vague as to the particular offense therein charged that an acquittal thereunder would not bar another prosecution for the same alleged offense.
“8. Said indictment violates article 5 of the Federal Constitution which provides: ‘Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.’
“9. Said indictment violates section 23 of article 2 of the Constitution of Missouri, which provides: ‘That no person shall after being once acquitted by a jury be again, for the same offense, put in jeopardy of life or liberty.’
“10. Said indictment does not allege or set out any specific or particular fraudulent act or acts, but contains broad and general allegations of fraud which are legal conclusions, and therefore insufficient and incompetent.”

This motion was sustained, the indictment quashed and the defendant discharged. Thereupon the State appealed to this court.

At the same term a bill of exceptions embodying the motion, the court’s rule thereon and the State’s exceptions to such ruling, was filed.

This sufficiently presents the record before us for consideration.

OPINION.

I.

The record now before us discloses that defendant, upon numerous grounds, challenged the sufficiency of the indictment in this cause. It is earnestly insisted by learned counsel for respondent that this indictment is so vague, indefinite and uncertain that the defendant is unable to prepare his defense.

It is sufficient to say upon this proposition that we have carefully analyzed the indictment and we are unable to give our assent to this insistence. This indictment is predicated upon tbe provisions of section 1912, Revised Statutes 1899. It charges, in proper form, every essential element of the offense of embezzlement as defined by that section. Indictments and information charging the offense of embezzlement under section 1912, Revised Statutes 1899, have frequently been in judgment before this court, and the indictment in the ease at bar is substantially, both in form and substance, similar to indictments and informations charging this offense which have heretofore met the approval of this court. [State v. Wissing, 187 Mo. 96; State v. Shour, 196 Mo. 202; State v. Gebhardt, 219 Mo. 708; State v. Lipscomb, 160 Mo. 125; State v. Larew, 191 Mo. 192.]

It is urged in the argument of learned counsel for respondent that the indictment should inform the defendant, by appropriate allegations, from whom the money was collected. In other words, it is insisted that the indictment should detail the manner of procuring the money which is charged as belonging to the insurance company, and from whom it was received. This insistence is predicated upon the theory that under the provisions of the Constitution the defendant should be fully informed as to the nature and character of the charge which he is required to meet in the trial court. Upon that proposition it is sufficient to say that this indictment charges the offense in the language of the statute. It informs the defendant that he is Charged with being the clerk or agent of the corporation, and that as such clerk and agent, he received and had in his possession certain moneys of the property of the insurance company. This, in our opinion, gave the defendant sufficient information as to this charge in order to enable him to prepare for his defense. Presumptively, he is aware of all the transactions in which he was concerned in the way of receiving money for this company, and the parties from whom it was received. In order to make Ms defense, if he is an honest man and has not been guilty of embezzlement, the information sufficiently informs him of the .nature and character of the offense charged to the end that he may prepare his defense along the lines of showing in the trial court that he has not converted to his own use or embezzled any of the moneys received by him in which the corporation had any interest. If it is essential in this case to charge, and allege the names of the numerous parties from whom the money was received, and that such money was embezzled or converted to the defendant’s own use, then it would be equally essential in the case of the merchant who would send his clerk out to collect bills, and who would collect the same and convert to his own use moneys so received, to allege the names of all the parties from whom such clerk had'received any money. This the law does not require, and by no means is it contemplated that such allegations under the provisions of section 1912, Revised Statutes 1899, should be made. All that is necessary is that the defendant be informed that he is charged with embezzling funds belonging to a certain individual or corporation or partnership or company. If the party charged with such embezzlement is not guilty, we are inclined to the opinion that it is not difficult to prepare a defense to show that he honestly accounted for all the moneys in his hands belonging to his employer.

ft.

It is next insisted that the indictment is indefinite and uncertain for the reason that it failed to allege the character of the business in which the corporation, named in the indictment as the owners of the embezzled money, was engaged, and being a corporation organized under .the laws of the State of Indiana; it does not appear from the allegations of the indictment that it is authorized to do business in the State of Missouri.

In State v. Lipscomb, 160 Mo. 12'5, it was contended that it was essential to aver in the indictment the nature and character of the business in which the parties charged to be the owners of the money embezzled were engaged. In that case the charge was embezzlement of money belonging to Brown & Son. It was held that it was not necessary for the indictment to set out the kind of business in which the copartnership of Brown & Son was engaged. The indictment alleges that Brown & Son were copartners, and as such the defendant was in their service as clerk, and received and embezzled certain money. The indictment in the case at bar was substantially the same as in the Lipscomb case, and in that case it was said by this court: “In charging the offense it follows substantially the language of the statute, by which the offense is created, and that is all that is necessary,” citing in support of the ruling in that case, State v. Adams, 108 Mo. 208; State v. Mohr, 68 Mo. 303; State v. Coulter, 46 Mo. 565; State v. Johnson, 93 Mo. 317.

It will be observed in the Lipscomb case that it was a. clerk charged with embezzlement of money he received for his firm; yet there was no pretense that it was essential, in order to sustain the indictment in that case, that there appear upon the face of the indictment by appropriate allegations and averments the names of the parties from whom he had received the money, or that it was necessary to detail in any manner as to how such money was received. It was also contended in the last case cited that the indictment should have alleged that defendant was authorized to receive the money which he was charged with embezzling. This court held that there was no merit in that contention for the reason that-by the express language, of the statute it is made a felony for any clerk to embezzle or convert to his olwn use any money, or to take, make away with or secrete with intent to embezzle or convert to his own use without the assent of his master or employer, any money which shall come into his possession or under his care by virtue of his employment. This being the case, it was immaterial whether he was authorized to receive the money or not; if he received it as clerk for his employers, and embezzled or converted it to his own use, he was guilty of a criminal offense under the statute.

Upon the proposition that it was essential to allege that the insurance company was authorized by proper license to transact business in this State, it is sufficient to say that in our opinion it is immaterial whether it was legally or illegally doing business in this State; nor was it necessary to charge that the money received by the clerk and embezzled by him emanated from any business connected with the insurance company, that is, in the transaction of insurance business proper. But it may be conceded for the purposes of this case that the money received by the defendant, which he is charged with embezzling, was received in the transaction of insurance business for the company alleged! in the indictment, yet this cannot avail defendant in this prosecution. In State v. Reynolds, 65 N. J. L. l. c. 426, this proposition was in judgment before that court, and in treating of it the court very clearly and correctly declared the ,law. It was there said: “The fact that . . . foreign corporations are required to do certain things to be authorized to do business in this State (N. J.), and are liable to a penalty if they do not do so, is of no consequence as between the State and the defendant in an indictment. The crime is against the State, not the owner of the property.”

Again, it may be said that while it does not appear upon the face of this indictment, nor was it necessary to make that allegation, that the insurance company mentioned in the indictment was authorized to do business in this State, bnt conceding that it was without authority to do business in this State, and that the money received by the defendant as clerk or agent for such company was illegally received, yet under the well settled rules of law as announced by this court, this would furnish him no ground for escape from the charge made against him.

In State v. Cunningham, 154 Mo. 161, the defendant was indicted for the embezzlement of money received by him belonging to one McLemore. The defendant was acting as the 'agent of McLemore, and his employer sent him two hundred and fifty dollars to deal in futures, which dealing was in violation of section 3931, Revised Statutes 1889. It was this money, the sum of two hundred and fifty dollars, that the defendant was charged with embezzling. That statute substantially provides that the sale of any of the properties mentioned therein, which include grain, either on margin or otherwise, without any intention on the part of the party of receiving and paying for the property so' bought, or when the party buying any such property or offering to buy the same does not intend actually to receive the full amount of the same if purchased, is declared to be gambling and unlawful, and! is thereby prohibited. It was expressly ruled by this court, speaking through Judge Burgess that there was^ no question, from the evidence in the case, that the contract in question concerning the dealing in futures came within the inhibition of the statute and was- a gambling contract. It was contended, on the ground that this was a gambling contract, that the defendant could not be convicted of embezzlement. However, it was expressly held that furnished no reason why the defendant was any the less guilty of embezzling McLemore’s money. The general rule is that although money be placed in the hands of an agent for an unlawful purpose, if he intentionally misapplies it or converts it to his own nse, he is guilty of embezzlement. [10 Am. and Eng. Enoy. Law (2 Ed.), p. 986.]

In State v. Shadd, 80 Mo. 358, the defendant auctioned off pools on a horse race about ,to be run and received the money of the purchasers, to whom he gave a receipt therefor, and it was expressly held in that case that he was the agent of the purchasers and if he converted the money to his own use with intent to deprive the owners of it, he was guilty of embezzlement, notwithstanding the money was placed in his hands for an immoral purpose.

To the same effect was .Commonwealth v. Cooper, 130 Mass. 285. That was a prosecution for the embezzlement of two hundred dollars received by the defendant upon a check sent to him by one Wood, with directions to invest the same for him on margins in railway shares. One of the defenses in that case was that the . contract was a gambling contract. In treating of that proposition the Massachusetts court said: “The defendant further contended that his contract with Wood ‘was a gambling contract, and was illegal under the statute; and that, even if he had appropriated the margin, he could not be convicted of embezzlement. ’ There was no evidence that Wood contemplated, or authorized the defendant to enter into, any gambling or illegal contract. If he had, the check or money sent him would remain the subject of larceny or embezzlement; and if the defendant fraudulently appropriated it to his own use, it would be no defense to an indictment by the government for embezzlement to show that the property had been intrusted to him for an illegal purpose.” The same rule is announced in State v. Turney, 81 Ind. 559; McClain’s Crim. Law, sec. 635; State v. O’Brien, 94 Tenn. 79 ; Woodward v. State, 103 Ind. 127; State v. Spaulding, 24 Kan. 1.

In the State of Ohio the Revised Statutes require ..foreign corporations to file a certified statement with the Secretary of State in order to authorize them to be placed upon the same footing with domestic corporations ; and in State v. Pohlmeyer, 59 Ohio St. 491, the defendant was indicted for embezzlement of money belonging to a foreign corporation that had not complied with the provisions of the statute with respect to filing the statement with the Secretary of State. Upon the trial the defendant interposed this failure of the foreign corporation to comply with the provisions of the statute as a defense to the charge of embezzlement. The Supreme Court of Ohio, in answer to such defense, held that it -was not the purpose of the General Assembly by requiring the statement hereinabove indicated, to make booty of the property of corporations which did not comply with the provisions of the act. It was ruled that the statutory definition of the offense of embezzlement regards the actual relation of the agent, servant or employee, and not the legality of the mode in which it was created nor the extent of the authority conferred; and it was in that case held that one who receives money or any other thing of value in the assumed exercise of authority as agent for another, is estopped thereafter to deny such authority, and this rule applies in criminal as well as civil actions; citing in support of the rule, 2 Bishop ’s New Crim. Law, sec. 364; State v. Spaulding, 24 Kan. 1; State v. Tumey, 81 Ind. 559; State v. O’Brien, 94 Tenn. 79; People v. Hawkins, 106 Mich. 479:

In Commonwealth v. Shober, 3 Pa. Super. Ct. Rep. 554, it was held that if money has actually been paid to an agent, for the use of his principal, the legality of the action of which it was the fruit does not affect the right of the principal to recover it, nor the criminal liability of an agent for embezzlement as consignee. An agent cannot be heard to deny the title of his principal. It was also ruled in that case that in order to convict the defendant of embezzlement it was not essential for the Commonwealth to prove that the foreign corporation had complied with the law in order to authorize it to do business in the State.

III.

We have given careful consideration to the insistence of counsel for respondent that this indictment is violative of the provisions of the State as well as the Federal Constitutions, and we are unable, after ya véry careful consideration of the subject, to reach a conclusion that this indictment is in any way violative of the provisions of either the State or Federal Constitution. Section 1912 simply defines in plain language the offense of embezzlement. This indictment alleges the essential elements of that offense, and, as before stated, is in harmony with the uniform and unbroken line of decisions in this State. [State v. Larew, 191 Mo. l. c. 199, 200.]

We see no necessity for pursuing this subject further. Our views are fully indicated, which results in the conclusion that the trial court committed error in sustaining the motion to quash the indictment. The judgment of the trial court should be reversed and the cause remanded, and it is so ordered.

All concur.


author: GANTT, P. J.

text:
    THE STATE v. THOMAS SECHRIST, Appellant.
    Division Two,
    March 15, 1910.
    1. JUDGE DISQUALIFIED: Another Called. Where the regular judge is disqualified, and calls in the regular judge from another circuit to try the case, and he is disqualified by defendant’s affidavit of prejudice, the regular judge of the court is authorized to call in the regular judge of another circuit, and when such judge appears and the cause is continued and he cannot at the next term try the cause because of the interference of a regular term of court in his own circuit, the regular judge of the court is authorized to call in the regular judge of still another circuit, and such judge has authority to try ths cas*

      2. RAPE: Several Acts: Election. It is proper, in the trial ot defendant for the rape of his daughter, sixteen years old, to admit evidence of acts of sexual intercourse committed prior to the date charged in the information; and if the court instructs the jury that such prior acts are to he considered only as tending to prove or disprove the act for which a conviction is sought, a refusal by the court to require the State to elect upon which act it would seek a conviction is not reversible error.
    3. REMARKS OF ATTORNEY. One of the attorneys for the State in his argument to the jury said: “Any man that will commit a rape on a girl such as this, is a coward” — the girl being defendant’s sixteen-year-old daughter. Held, no error.
    4. RAPE: Insufficient Evidence: Irreconcilable. The statutes on incest and rape attest that these crimes are within the ' experiences of courts and legislatures, and to authorize the Supreme Court to reverse the judgment because of the weakness of the testimony, the verdict must he irreconcilable with human experience; and though the record presents a case that chai-' lenges credulity, yet if the testimony of the prosecutrix is true, and is not irreconcilable with human experience, and if true defendant is guilty, the Supreme Court will not interfere.
    Appeal from Greene Criminal Court. — Row. A. W. Lincoln, Judge, and Hon. John T. Moore, Special Judge.
    Aeeibmed.

      Elliott W. Major, Attorney-General, and Chas. G. Revelle, Assistant Attorney-General, for the State.
    (1) The position assumed by defendant’s counsel was that since the regular judge had disqualified himself he was without any authority to call in Judge Moore after Judge Casteel had been disqualified by affidavit and Judge Johnston had assumed the duties of special judge but was unable to act further. This precise question was before the court in State v. Gill-ham, 174 Mo-. 671, and the contention here made was ruled adversely to defendant. The propriety of the court’s action is also fully sustained by State v. Silva, 130 Mo. 456, and State v. Hndspeth, 159 Mo. 219. (2) In the motion for new trial, defendant also complains that the court limited the time of counsel’s argument in his behalf to two hours and a half, but the record fails to support the allegation to this effect. There are no entries evidencing such an action, and no objections or exceptions preserved. This assignment cannot therefore be considered. State v. Williams, 147 Mo. 18; State v. Grant, 144 Mo. 66; State v. Feelev, 194 Mo. 315. (3) Before any testimony was offered, defendant requested that the State be required to elect upon which act of intercourse it would seek a conviction, it appearing that the case had been once tried and the prosecuting attorney was familiar with the facts. The court denied this demand and defendant duly excepted. The motion to require the State to elect was not renewed at any subsequent stage of the trial, but at the close of the whole testimony defendant asked the court to strike out all the testimony relating to the acts of intercourse, or attempted intercourse, which took place prior to April 19th, this being the day-when defendant committed the act for which he was being prosecuted. The record discloses that, throughout the trial, both the State and defendant proceeded upon the theory that the act committed by defendant on April 19th, which was the date charged in the information, was the particular one upon which defendant was being tried, and the State was seeking a conviction. The instruction given by the court was in line with this admitted theory, and properly defined and limited the purpose and effect of the evidence of the prior acts. No testimony was offered of any subsequent act, and in this State there is no longer any doubt as to the admissibility in evidence of the prior acts. The action of the court in this respect was in keeping with the decisions of this court. State v. Scott, 172 Mo. 542; State v. Palmberg, 199 Mo. 240'; State v, Prewitt, 202 Mo, 49.
   GANTT, P. J.

This is a prosecution for rape, commenced by the prosecuting attorney of Greene county, by information, charging defendant with rape of his daughter, a girl about sixteen years old, in Greene county, on April 19, 1907. Defendant was arraigned and pleaded not guilty and was convicted and sentenced to the penitentiary for seven years.

His first trial resulted in a mistrial, owing to a disagreement of the jury. Prior to the second trial, Judge Lincoln, the regular judge of the criminal court, voluntarily disqualified himself and called Judge B. J. Casteel, of the Buchanan County Criminal Court, who appeared at the time named, to preside in the case, but defendant filed an affidavit of prejudice on the part of Judge Casteel, duly supported by compurgators, and thereupon Judge F. C. Johnston of the Twenty-fourth Circuit was duly requested to try the cause and it was set down for August 26, 1907. Upon application of the defendant, the cause was continued to December 2, 1907. On the last mentioned date, Judge Johnston was unable to preside on account of business of his own circuit, and thereupon Judge Lincoln called in Judge John T. Moore, of the Thirty-first Circuit, and he appeared and assumed jurisdiction on the day fixed, to-wit, December 3, 1907. Defendant at the time objected to the orcler calling in Judge Moore, on the ground that Judge Lincoln had no authority to make the order and duly saved his exception.

After the panel of forty had been secured, defendant filed his motion to quash the same, because Judge Moore had no authority to make the order for said venire, because he had not been lawfully selected to try said cause, which motion was overruled and defendant excepted.

The evidence tended to show that defendant was a widower. His wife died about 1900, in childbirth. After her death, he continued to reside in Springfield • with. Ms children, four sons and one daughter. Edgar, the oldest son, was twenty-two years old; Walter, twenty ; Fannie, sixteen; George, thirteen; and Floyd, nine years, at the date of the trial.

At the date of the alleged rape, this family was living in a three-room house in Springfield. The two oldest sons were employed in a furniture factory and left home for their work about six o’clock, as was their custom every work day.

The testimony for the State then tended to prove that soon after the older boys left home, the defendant sent the two youngest into the city to gather slops for some hogs he was raising, and they remained away until about noon. After they left, the defendant compelled the girl, Fannie, to get in bed with him, by threatening her with a shotgun if she disobeyed him. He then and there, under these circumstances, had carnal connection with her.

About 12:15 the two young boys returned and found the door locked, and she got out of bed and let them in.

After preparing their dinner for them, Fannie, the daughter, left the house and went immediately to the police court, and made complaint against defendant. After she left, defendant took his shotgun and went to the furniture factory and called for one of his sons and told him that the girl had gone and that there was trouble at the house. Defendant suggested to the son that they had best not return by the public road or street, as they might meet the officers, and they went home by a devious route. Defendant was somewhat under the influence of liquor, and seeing two hoys, said, ‘ ‘ There are the officers now, ’ ’ but being informed by the son they were hoys,, they went on home and defendant was arrested immediately upon reaching his home.

The evidence tended to show that soon after his wife’s death, defendant began to have intercourse with this daughter, threatening to kill her if she ever divulged it, and himself. It was also developed in evidence that defendant seldom permitted his daughter to leave him when she was not accompanied hy members of the family, and in this connection he told her that he was afraid she would forget herself and tell of his conduct towards her if she were permitted to go alone. She did not attend school and was seldom seen with other children. There were hut two outside doors to the house in which these parties lived, and these were generally closed and the window blinds down when defendant and his daughter were there alone.

His older sons testified that when they returned home from their day’s work, they frequently found the doors locked, and the defendant and his daughter there alone.

The evidence also disclosed that by threats and the use of the shotgun, defendant compelled his daughter to admit that she had been unduly intimate with two of her brothers, and that by the same means he attempted to force a similar confession from one of his sons, but in this failed.

Dr. Woody testified that on April 20th, he made an examination of the prosecutrix, and found that she was well developed for a girl of her age, her physical condition indicating that she had frequently had sexual intercourse.

On the part of the defendant, the testimony tended to show that for some years defendant had been afflicted with bodily infirmities, and that by reason thereof he remained at his home a greater portion of the time. He testified that at the time of the alleged crime, his condition was such that he had neither the desire nor the capacity to have sexual intercourse. He further testified that at no time had he been illicitly intimate with his daughter, but that on one occasion she had confessed to him that at several different times she did have intercourse with her older brothers. He became indignant at this and threatened to have her sent to , the reform school.

There was also evidence to the effect that he did not prevent her from going to such places, and with such persons as she saw fit, and that in fact she fre: quently went to-various places without being accompanied by a member of the family, and was permitted to and did associate with other children. He usually kept at the house, or carried with him when out, a shotgun or pistol, because some years prior thereto he had received a letter which threatened him with certain punishment if he did not go to work.

Several witnesses testified to his good reputation for morality and veracity. In rebuttal, the State offered the testimony of several witnesses to the effect that defendant’s reputation for morality was bad.

I. While the learned counsel for defendant assailed Judge Moore’s right to preside on the trial upon the invitation of Judge Lincoln, the regular judge of the court, after the inability of Judge Johnston to try the cause had appeared, they have not favored us with any authority for their position, nor shown any reason for their construction of section 2597, Revised Statutes 1899, by virtue of which Judge Lincoln acted in requesting Judge Moore to preside.

But the point was settled by this court in State v. Gillham, 174 Mo. 671, in favor of the order. We. can add nothing to what was then said and the exception to Judge Moore’s right to preside and order the venire must be and is disallowed. [State v. Silva, 130 Mo. l. c. 456, 459; State v. Hudspeth, 159 Mo. l. c. 210; 211.]

II. It is insisted that the court erred in refusing To set aside certain of the panel of forty, on their voir dire examination. As no challenge was made to or any exception saved as to any of those named except W. E. Thompson and Roy Patterson, the challenges as to these two only will be considered.

Mr. Thompson stated that he had not heard any of the testimony on the first trial, nor talked with any witness who claimed to know the facts. From reading the newspaper accounts, he had formed an opinion at the time. He was unable to state how that opinion would affect him, if he was selected, but he felt confident he could render a fair and impartial verdict upon the testimony; that he had no prejudice to defendant.

By statute in this State, it is expressly provided that “it shall be a good cause of challenge to a juror that he has formed or delivered an opinion on the issue, or any material fact to be tried, but if it appear that such an opinion is founded only on rumor or newspaper reports, and not such as to prejudice or bias the mind of the juror, he may be sworn.” [Sec. 2616, E. S. 1899.] The juror was competent. [State v. Church, 199 Mo. 605; State v. Robinson, 117 Mo. 649; State v. Walton, 74 Mo. 270; State v. Van Wye, 136 Mo. l. c. 243.]

As to the juror, Roy Patterson. He testified he had not formed or expressed any opinion as to the guilt or innocence of the defendant. Had read the newspapers, but formed no opinion from so doing. He did hear a part of the testimony of Fannie Sechrist. He came in the court room while counsel for defendant was cross-examining her. He heard none of the examination in chief, and from the fragment of her testimony on cross-examination, he formed no opinion whatever as to the guilt or innocence of defendant. We think the juror was not disqualified. [State v. Riddle, 179 Mo. 287.]

III. As to the point that the court limited the time for argument on a side to two and one-half hours, it is sufficient to say the record does not sustain this assignment.

IV. The defendant moved the court to require the State to elect upon which act of intercourse it would seek a conviction, and the court declined to do so and exception was taken.

The cause was tried on both sides with reference to the act committed on April 19,1907, the date charged in thé information. No testimony was admitted as to any subsequent act. The prior acts were admissible. [State v. Scott, 172 Mo. l. c. 542; State v. Palmberg, 199 Mo. l. c. 240, 252.]

On this branch of the case, the court instructed the jury as follows": “You are instructed that you cannot convict the defendant, Thomas Sechrist, upon any act of sexual intercourse between the defendant and the witness, Fannie Sechrist, committed prior to April 19,1907, if you find that any such acts were committed, but you are to consider the evidence of such acts, if any, only as such evidence tends to prove or disprove the act of sexual intercourse upon which the conviction is sought.”

In view of this showing, we think there was no reversible error-in the action of the court in denying the motion to require an election.

V. Complaint is made of this language of one of the attorneys for the State: ‘ ‘ Any man that will commit a rape on a girl such as this, is a coward.” We think there is no merit in this point.

VI. The remaining assignments of error may be treated under one head, to-wit, that the testimony of the. prosecutrix is so incredible, unreasonable and improbable, that the circuit court should have instructed the jury to acquit the prisoner, and that this court should reverse the judgment and discharge the prisoner.

That the transcript presents a state of degradation that challenges credulity must be conceded, and yet our statutes on incest and rape attest that these crimes are within the experience of our courts and. Legislatures. To justify this court in reversing a case upon the weakness of the testimony, the verdict must he irreconcilable with human experience.

Considering the islolation of this prosecutrix from any female relative, her mother dead, and the evidence of immorality of the father; the conflict between the father and the sons as to material facts; that the jury and the circuit judge before whom the cause was. tried, had the opportunity to see and hear the testimony of the prosecutrix, an opportunity we cannot have, however loth we may be to believe any father so degraded and brutal, we do not feel justified in reversing this judgment upon the weight of the evidence. The jury believed the testimony of the prosecutrix, and if that evidence was true, the defendant deserved the severest penalty the law prescribes. He had the benefit of able and industrious counsel and a trial in the county where he lived for many years. The facts of this ease are radically different from those in State v. Goodale, 210 Mo. 275, which was reversed because the testimony of the prosecutrix was utterly irreconcilable with all the established facts in the case.

After a careful consideration of the testimony, we are constrained to affirm the judgment, and it is so ordered.

Burgess and Fox, JJ., concur.