text:
    THE STATE v. ERNEST LOVAN, Appellant.
    Division Two,
    November 13, 1912.
    1. FALSE PRETENSE: Information: Omission of Word Designedly. In a prosecution for obtaining property by false pretense, an information which omits the word “designedly” may be good under Sec. 4765, R. S. 1909, whether or not it is bad, because of the omission of that word, under Sec. 4565, R. S. 1909.

      2. -: -: Omission of Words, “By Means or By Use , Of”: Technical Defect. In a prosecution for obtaining property by false pretense, an information which only in the last paragraph contains the charge that defendant obtained the property “by means or by use of” the false pretense set out elsewhere at length, is technically defective, since, upon precedent, such charges should appear in the body of the information preceding the conclusion; but purely technical objections should not be encouraged, and where the information, taken as a whole, clearly advises the defendant that he is charged with an offense as defined by the statute, and clearly sets forth the facts upon which the charge is based, it should not be held bad because of such technical defect.
    3. -: -: -: Inferred from Words Used in Conclusion. A statement in the conclusion that defendant “by means or by the use of” the false pretense obtained the property of another is not to be disposed of as a mere argumentative legal inference from facts previously stated, and therefore unsound. On the contrary, a charge of felonious intent is necessarily a deduction or inference from an allegation of facts which constitute the statutory offense and to which the charge refers.
    4. -: Instruction: Use of Word “Whereas” in "Negation. The use of the word “whereas” in the negative part of an instruction in a prosecution for obtaining money by false pretense, is both awkward and meaningless; but if the words, “if the jury shall further find that,” are used before it the defect is cured.
    5. -: Evidence: Deeds: Identifying Land. In a prosecution for obtaining lands exchanged for other property and falsely ■ represented, in the contract of exchange though not specifically described therein, to be free from all incumbrances, whereas they were in fact incumbered by two recorded mortgages, deeds, handed to the prosecuting witness, after the trade was completed, by defendant, in response to a request for a description of the property, and in which the lands are described as they are in the information, are competent evidence to identify the land mentioned in the contract with the lands described in the information.
    6. -: -: Self-serving: Incumbered Land: Represented to be Unincumbered: Criminal Intent: Owner of Mortgage: Arrangement to Pay. Defendant and the prosecuting witness entered into a written contract for the exchange of properties, in which defendant represented- his lands to be free from all incumbrances, whereas they were incumbered by two deeds of trust; and defendant testified that he told the prosecuting witness of these mortgages at the time and further told him that he had an arrangement with the holder of them by which he could get them at any time; and said holder testified that they had been put up with him as collateral security for a loan. Held, that it was error to refuse to permit the holder to testify that he had a conversation with defendant in reference to surrendering the mortgage notes, even though the arrangement had not been carried out; for if defendant had pledged the notes the fair inference is that he was their owner, and if he was their owner, even though they were not pledged, the testimony was competent as bearing on the question of criminal intent in making the representation.
    7. -: -: Of Other Transactions: Withdrawal: Cure. A withdrawal by verbal direction of incompetent evidence does not always cure the injury done. Where the prosecuting attorney, in a prosecution of defendant for obtaining property by false pretense, in his opening statement, over defendant’s objection, detailed to the jury certain facts which he proposed to prove concerning another transaction of a fraudulent nature involving defendant, and a witness was permitted, over defendant’s objection, to testify to the facts of this other transaction, the court did not cure the injury done by ruling, after the testimony was in, that it was incpmpetent, and by withdrawing it, by verbal direction, from the jury. That was a withdrawal in form, but not in fact from the minds of the jurors.
    8. -: -: Unincumbered Real Estate: Written Contract: Parol Testimony. Fraud is not merged in a written contract. Where the written contract was brought about by fraud, proof of that fraud may be in parol. So that where defendant was charged with falsely representing that the land was free from all incumbrances, and the agreement for exchange of properties was in writing, defendant cannot escape on the ground that the written contract does no more than bind defendant to guarantee the title, for the fraud does not depend solely on the written contract, and parol testimony of the prosecuting witness that defendant verbally assured him before the contract was written that the land was unincumbered, was competent. In such case, the rule applied in civil cases in actions upon written contracts, namely, that prior conversations and oral agreements are merged in the writing, have no application.
    Appeal from Jackson Criminal Court. — Row. E. E. Porterfield, Judge.
    Reversed and remanded.

      Cooper £■ Wilson, Mvore & Creel, and Wofford $ Kimbrell for appellant.
    (1) The information was drawn and the ease was tried under the false pretense statute, Sec. 4565, R. S. 1909, as amended by Laws 1911, p. 195, and cannot now be shifted to the cheat-and-fraud statute, Sec. 4765. Instruction 1; given at the instance of the State, is erroneous for failing to instruct as for a misdemeanor in case the jury should have found the value of the livery stable stock to be less than thirty dollars. Sec. 4920, R. S. 1909; State v. Marion, 235 Mo. 359. (2) The information is bad under Sec. 4565, R. S. 1909, for the reason that it does not charge the acts and representations complained of to have been done and made “designedly.” State v. Puckett, 174 Mo. 663; State v. Martin, 226 Mo. 538. (3) The information is bad under Sec. 4765, R. S. 1909, for the reason that it does not charge that Hannay “by means or by use of” the alleged misrepresentations, trick or deception was induced to assign, convey, transfer and deliver, and did then and there assign, convey, transfer and deliver to said Lovan all of said shares of stock. Sec. 4765, R. S. 1909; State v. Martin, 226 Mo. 538. (4) The information is bad under See. 4765, R. S. 1909, for the reason that the alleged trick, deception or false and fraudulent representations are not set forth in the information with particularity, so that the accused might be informed sufficiently of the cause and nature of the accusation. State v. McChesney, 90 Mo. 120; State v. Martin, 226 Mo. 538. (5) The information is bad- for the reason that it does not charge that said Lovan falsely, fraudulently and feloniously offered and proposed to him, the said Hannay, that he, the said Lovan, would then and there trade, transfer and convey to him, the said Hannay, one-half of the capital stock of the Lovan Investment Company, and falsely, fraudulently and feloniously offered and proposed that said Lovan would then and there trade, transfer and convey to Ha'nnay one-half of the real estate described. State v. Buchfelder, 231 Mo. 55; State v. Herrell, 97 Mo. 108. (6) Instruction 1, given by the court, on behalf of the State, is erroneous for the reason that it does not tell the jury what false representations the defendant is charged with, but refers the jury to the information for that purpose. State v. McCaskey, 104 Mo. 644; State v. Marion, 235 Mo. 359; State v. Steele, 226 Mo. 583. (7) Instruction 1 is erroneous for the reason that it assumes, and directs the jury, that Lovan and the Lovan Investment Co. were not the owners of the real estate described; assumes, and directs the jury, that said real estate was not free and clear of encumbrances; assumes, and directs 1Te jury, that said real estate was mortgaged; assumes, and directs the jury that Lovan knew that said real estate was not free and clear; and assumes, and directs the jury, that Lovan knew it was mortgaged. Slate v. Steele, 226 Mo. 583. (8) The court erred in íefusing to instruct the jury at the close of all the evidence to find the defendant not guilty for the reason that testimony that the defendant represented to Hannay that he owned, free and clear of encumbrance, “280 acres, Morgan County, Missouri,” does not sustain or support, or tend to sustain or support, the allegation of the information that the defendant represented that he owned, free and clear of encumbrance, “the west one-half of the southeast quarter and the southeast quarter of the northeast quarter and the northeast quarter of the southeast quarter, all in section 10, township 40, range 19,' containing 160 acres, and the east one-half of the northeast quarter of section 15, and the southeast quarter of the southeast quarter of section 10;. township 40; range 19, containing 120 acres, all in Morgan County, Missouri,” and the question is not a question of variance, but an absolute failure of proof. State v. Cook, 162 Ala. 90; State v. Scheib, 159 Mo. 142; State v. Plant, 209 Mo. 307; State v. Mispagel, 207 Mo. 557. (9) The court erred in excluding the testimony of J. J. Swofford on the point of his having had an agreement with the defendant that he would surrender the mortgage notes against the Morgan county land, which he held as collateral security. It was not necessary for defendant to make a formal offer to prove the agreement between him and Swofford in order to save the point here urged. The question was put in such form as to disclose its materiality. The exclusion of this testimony constitutes reversible error. Jackson v. Hardin, 83 Mo. 187; State v. Young, 119 Mo. 522. (10) The court erred in permitting the witness, Crauel, to relate before the jury his transaction with defendant about a $11,000 note in 1908, giving the jury the impression that defendant had obtained such note under false pretenses. This was a separate and distinct transaction and had no connection whatever with the charge in the information and the relation of the circumstance before the jury was highly improper and prejudicial to the defendant. The fact that the court, after the evidence was in, stated to the jury that the evidence was withdrawn from the consideration of the jury, did not cure the error. State v. Goetz, 34 Mo. 85; State v. Daubert, 42 Mo. 246; State v. Parker, 96 Mo. 389; State v. Spray, 174 Mo. 576; State v. Speyer, 207 Mo. 540; State v. Hyde, 234 Mo. 250'. (11) The court committed error in permitting the cross-examination of defendant regarding matters to which he did not testify in chief. This was particularly prejudicial, because the cross-examination related to the transaction between defendant and Crauel in the year 1908, about a $11,000, note, it being the same transaction about which Crauel testified. It was not referred to in defendant’s testimony in chief. It is reversible error to permit the cross-examination. Sec. 5242, R. S. 1909; State v. Mc-Graw, 74 Mo. 573; State v. Porter, 75 Mo. 171; State v. Turner, 76 Mo. 350 ; State v. Patterson, 88 Mo. 88; State v. Chamberlain, 89 Mo. 129'; State v. Brent, 100 Mo. 531.

      Elliott W. Major, Attorney-General, and John M. Atkinson, Assistant Attorney-General, for the State.
    (1) The information is good under Seo. 4565, R. S. 1909. It-contains the substantial words of the statute, and fully sets forth the exact nature of the false representations made by the defendant. State v. Pickett, 174 Mo. 663; State v. Yandenburg, 159 Mo. 230. (2) Even if the information should be held bad under Sec. 4565, R. S. 1909, because of the omission of the word “designedly,” it is good under Sec. 4765, R. S. 1909. State v. Martin, 226 Mo. 538; State v. Woodward, 156 Mo. 143; State v. Wilson, 223 Mo. 156. The acts and representations set out in the information bring this offense clearly within the class of cases defined by Sec. 4765, and the offense is a felony regardless of the value of the property obtained. State v. Bayne, 88 Mo. 604; State v. Woodward, 156 Mo. 143; State v. Jackson, 112 Mo. 585; State v. Yandenburg, 159 Mo. 230. The false and fraudulent representations, pretenses and statements and all the constituent elements of the offense are set out with particularity and precision, and the information fully informs defendant of the nature and cause of the accusation. State v. Woodward, 156 Mo. 143 v State v. Yandenburg, 159 Mo. 230; State v. Martin, 226 Mo. 538. (3) No error was committed in admitting in evidence the two warranty deeds from defendant and his wife to the Ernest Lovan Investment Company, conveying to the latter the 280 acres of land in Morgan county. These deeds were admis: sible for the purpose of identifying the 280' acres of land listed in the contract between defendant and the prosecuting witness, of date April 9', 1910'. Nor was there error in admitting in evidence the two deeds of trust on the Morgan county land, held by Swofford. These deeds of trust were admissible for the purpose of showing that there were encumbrances on the Morgan county land at the time that defendant represented said land to be free and clear of encumbrance. (4) The court did not err in sustaining an objection of the State to the question asked by defendant of Swofford, the party who held the two notes and the deeds of trust on the Morgan county land. The question asked is as follows: “Did Mr. Lovan ever call to see you with reference to your surrendering those notes to him?” This testimony was wholly immaterial. There was no offer to show that defendant had any arrangement with Swofford by which he was to take up the notes, and even if there had been such an arrangement, it was not material to any issue in the case. (5) The court, on the objection of defendant, withdrew from the consideration of the jury all the evidence of Crauel, pertaining to the transaction had by him with defendant, and the court, further, by instruction 4, instructed the jury to wholly disregard all testimony stricken out of the record by the court, and that the jury must decide the case entirely upon the testimony admitted by the court. State v. Hopper, 71 Mo. 425; State v. Lett, 85 Mo. 52; State v. Fitzgerald, 130 Mo. 436; State v. Gartrell, 171 Mo. 511; State v. Church, 199' Mo. 638; State v. Barrington, 198 Mo. 23; State v. Turner, 76 Mo. 350. (6) The record shows that in all except two or three instances the court sustained the objections to the prosecuting attorney’s cross-examination of the defendant; and these instances related to matters on which he had been examined in chief. State v. Worton, 139 Mo. 526; State v. Eisenhour, 132 Mo. 140 ; State v. Williams, 186 Mo. 128; State v. Miller, 190 Mo. 449.
   FERRISS, J.

— Defendant was convicted in the criminal court of Jackson county, on an information charging him with the crime of obtaining property by false pretenses, and sentenced to two years in the penitentiary. The information charges that defendant, with intent to defraud one George F. Hannay, did falsely, etc., represent to said Hannay that he, the defendant, and the Ernest Lovan Investment Company, owned in fee simple, and free and clear of all incumbrances, several parcels of real estate, described in detail in the information, and that said Hannay was the owner of certain capital in certain corporations, set out in detail. The information then proceeds as follows:

“That said Lovan, then and there, offered and proposed to him, the said Geo. F. Hannay, that he, the said Lovan, would then and there trade, transfer and convey to him, the said George F. Hannay, one-half of the capital stock of said Ernest Lovan Investment Company, a corporation as aforesaid, and would then and there trade, transfer, and by good and sufficient warranty deed convey to the said Ernest Lovan Investment Company, one-half of the real estate above described,. in exchange for the said shares of stock of Palace Stable Company, a corporation as aforesaid, and said shares of stock in Fashion Stable Company, a corporation as aforesaid, owned by said Hannay, as aforesaid.
“That said Hannay, believing the said Ernest Lovan and the Ernest Lovan Investment Company to be the owners of said real estate, described as aforesaid, and believing the said false and fraudulent statements of said Lovan in that behalf made as aforesaid, to be true, and relying thereon and being deceived thereby, was induced by reason thereof to assign, convey,. transfer and deliver, and did then and there assign, convey, transfer and deliver to the said Lovan all of said shares of stock in said Palace Stable Company and the said'Fashion Stable Company, as above set forth and described, by him, the said Hannay, owned as aforesaid, in exchang-e for one-half of the capital stock of said Ernest Lovan Investment Company, and one-half of interest in the real estate above mentioned and described, which he, the said Ernest Lovan, did then and there pretend to assign and convey to him. the said George F. Hannay:
“Whereas, in truth and in fact, neither the said Ernest Lovan nor the Ernest Lovan Investment Company was then and there the owner of, nor had they, or either of them, any title or claim whatsoever to the said real estate, or any part thereof, as hereinbefore described and referred to as tracts 1, 2, 3¡, 4 and 6, except that said Ernest Lovan was lessee in a lease, for a period of ninety-nine years, covering the land mentioned and described in tract 1; and whereas in truth and in fact the said Ernest Lovan and the said Ernest Lovan Investment Company, or either of them, were not then and there the owners of the land in Morgan county, Missouri, hereinbefore mentioned and described, referred to and designated as tract No. 5, free and clear of all incumbrances whatsoever, but the said land and every part thereof was then and there incumbered with a valid and subsisting mortgage lien of fourteen hundred dollars, by virtue of two deeds of trust, both dated July 3, 1909, executed by J. E. Snodgrass to S. E. Berry, to secure the payment of two promissory notes of even date for six hundred dollars and eight hundred dollars respectively, the former due nine months after its date, the latter due one year after its date, both notes drawing interest at the rate of seven per cent per annum; said mortgages being of record in the office of the recorder of deeds in Mor gan county, Missouri, in book 21, page 396, all of wbicb he, the said Ernest Lovan, then and there well knew.
“And so the prosecuting attorney says, upon his oath aforesaid, that he, the said Ernest Lovan, by means of the said deception and false and fraudulent statements and pretenses, so made as aforesaid, then and there unlawfully, knowingly and fraudulently and feloniously did obtain of and from him, the said G-eorge F. Hannay, the shares of the capital stock of the Palace Stable Company and the said shares of the capital stock of the Fashion Stable Company, as above described, and of the aggregate value of $17,714.28; against the peace and dignity of the State.”

The State introduced in evidence the following written contract:

“This contract and. agreement entered into this 9th day of April, 1910', by and between Ernest Lovan, of Kansas City, Missouri, hereinafter called party of the first part, and Gr. F. Hannay, of Kansas City, Missouri, hereinafter called the party of the second part, witnesseth:
“That whereas, the party of the first part is now engaged in the general real estate and brokerage business, having offices at 517-521 Finance Building, Kansas City, Missouri, and whereas it is his intention to enlarge his business, giving more attention to the handling of farms and lands, and desiring to associate with him the party of the second part, and with this end and purpose in view, the party of the first part binds himself and guarantees to do as follows:
‘ ‘ First. That he will transfer to party of the second part one-half of the stock of the Ernest Lovan Investment Company, an incorporation under the laws of Missouri.
Second. That party of the first part will convey to said Investment Company for the use and benefit of said company the real estate and personal property hereinafter described, guaranteeing that each and every tract of land specified is free and clear of all incumbrances, save and except such incumbrances as may be noted at this time, and that the valuation placed by the party of the first part against each separate tract, piece or parcel of land is a fair and just cash valuation, and that it will and must net the company at least a profit of five thousand dollars within a reasonable time.
“Description of Property
“Clear and free from Incumbrance.
“Flat property located No. 575 Oak St., Kansas City, Missouri.............$6000.00
4 cottages, 100 feet ground (front), Topeka, Kansas.....................$2000.00
640 acres, McPherson county, Nebraska. .$6400.00
280 acres, Morgan county, Missouri.....$3500.00
166 2-3 acres, Morgan, county, Tennessee! 500.00
40 acres, Newton county, Missouri......$1500.00'
40 acres, Orange county, Indiana........$ 500.00
2 lots, Ft. Scott, Kansas...............$ 300.00
Merchandise in store room at 10th & Bar-field.........................'...$1000.00
Office furniture and fixtures.............$ 400.00
160 acres, Logan county, Kansas, value $2000; Mtg. $500, Equity...........$1500.00
160 acres, Harper county, Oklahoma, value $2500; Mtg. $1000, Equity..........$1500.00
80 acres, Dallas county, Missouri, value $1000; Mtg. $500, Equity...........$ 500.00
100 ft. Virginia Ave., Kansas City, Missouri, value $2000; Mtg. $1300, Equity.$ 700.00
7 lots and business house, Wentworth, Mo., value $3500; Mtg. $2500, Equity.....$1000.00
“Third. The real estate above described is subject to change by agreement of the parties hereto; that is to say, that if the party of the second part desires other real estate owned by the party of the first part substituted for any property listed herein, then the same is to become,an asset of the Ernest Lovan Investment Company, and such substitution will be made by the party of the first part. One of the main features and points to this agreement on the part of the party of the first part is, that the property shown and described belonging at this time to the Ernest Lovan Investment Company must and shall net to said company within a reasonable time at least twenty-five thousand dollars, which will be a profit of twenty-five per cent on twenty thousand dollars.
“Fourth. The party of the first part agrees to accept from the party of the second part, for the interest as herein stipulated, the sum of ten thousand dollars and that he will accept for the ten thousand dollars the interest of said party of the second part' in the Palace Stable Company and the Fashion Stable Company. The transfer of the interest of the party of the second part in this company is distinctly understood to be without any guarantee on his part as to the value of such interests.
“Fifth.- The party of the first part agrees to loan the Ernest Lovan Investment' Company immediately one thousand dollars, same to be placed in the bank to the credit of the company. He further agrees to loan them an additional one thousand dollars if needed at any time within the next six months, to insure the party of the second part his salary of two hundred dollars per month. Conveyances of any kind for property belonging to said investment company, whether real or personal, and all checks drawn on the bank, are to be signed by the president and secretary in their official capacity. Ernest Lovan, party of the first part, is to be president, and Gr. P. Hannay, part of the second part, is to be secretary and treasurer.
“Sixth. The party of the second part is forgive particular attention to land and farm sales, and it is understood that he will devote such time as may be necessary to the examination of such property.
“Seventh. In the event of the dissatisfaction on the part of either party, it is understood that the party of the first part is to buy for cash the interest of the party of the second part, and pay him therefor within three months from written notice the actual value at the time of sale, which shall not be less than the amount of the original investment, ten thousand dollars. It is understood that if withdrawals have been made from the business in excess of salaries, same is to be taken into consideration and applied against the original investment and profits.
“Eighth. Both parties hereto are to receive a salary of two hundred dollars per month. This may be changed at any time by mutual'consent.
“Ninth. It is understood and agreed that the property of the Ernest Lovan Investment Company, real and personal, is to secure the carrying out of this contract according to the legal tenor and effect, and further understood that the party of the second part may, if he so elect, sell and assign his stock either with or without this contract and agreement, provided he has .first given notice to the party of the first part that he wishes to sell in accordance with section seven of this contract.
‘ ‘ To all of which we bind ourselves, our heirs, executors and administrators forever.
“Ernest Lovan,
“Gr. F. Hannay.”

All of the parcels of real estate were eliminated from the case save the two hundred and eighty acres in Morgan county, Missouri. The. case went to the jury upon the representations concerning this one parcel. Testimony was given for the State tending to sustain the allegations in the information. The evidence for the State showed that at the time when the alleged representations were made, the Morgan county land was incumbered by two deeds of trust. The defendant testified that he told Hannay about these incumbrances, and told him, further, that he had arranged to clear them from the land. Hannay testified that defendant specifically told him, before the trade was made, and before, the contract above set forth was signed, that this land was clear and free from incumbrances. Further facts necessary to an understanding of the questions discussed herein will be found in the opinion.

I. It is claimed that the information is bad under Sec. 4565, R. S. 1909, because of the absence of the word “designedly,” which is an essential element of the offense defined by the statute. This court has held that an information omitting the word “designedly” is bad under said section. [State v. Pickett, 174 Mo. 663.] This holding is somewhat doubtfully recognized in State v. Martin, 226 Mo. l. c. 547. We need not reexamine the question, as we consider the information good under Sec. 4765, R. S. 1909'.

Defendant contends that the information is bad under section 4765, and sets out his contentions thus in his brief:

“3. The information is bad under Sec. 4765, R. S. 1900, for the reason that it does not charge that Hannay, ‘by means or by use of’ the alleged misrepresentations, trick or deception, was induced to assign, convey, transfer and deliver, and did then and there assign, convey, transfer and deliver, to Lovan all of said shares of stock.
“4. The information is bad under Sec. 4765, R. S. 1909, for the reason that the alleged trick, deception or false and fraudulent representations are not set forth in the information with particularity, so that the accused might he informed sufficiently of the cause and nature of the accusation.
“5'. The information is had for the reason that it does not charge that said Lovan falsely, fraudulently and feloniously offered and proposed to him, the said Hannay, that he, the said Lovan, would then and there trade, transfer and convey to him, the said Hannay, one half of the capital stock of the Lovan Investment Company, and falsely, fraudulently and feloniously offered and proposed that said Lovan would then and there trade, transfer and convey to Hannay one half of the real estate described.”

There is, we think, no merit in the contentions embraced in the above fourth and fifth assignments.

The other assignment, number 3, raises a serious question of pleading. There is authority for the position taken that the information is technically defective, according to approved precedents, because in the charging part there is no charge that the defendant obtained the stock from Hannay by means or by use of the false pretense; in other-words, it does not charge the specific offense defined by the statute. This charge is found only in the last paragraph -of the information. Upon precedent, it should appear in the body of the information, immediately after the allegation that Hannay, believing said representations, etc., was induced thereby, and did, convey, etc. Approved forms in this regard may be found in State v. Martin, supra; State v. Donaldson, 243 Mo. 460; 1 Wharton Prec. of. Indict., form No. 529, et seq. In Comm. v. Dean, 110 Mass. 64, an indictment similar in form to the one under discussion was held bad. The court, speaking of the concluding statement, says: It “is a statement of a legal conclusion from the facts previously charged. The conclusion does not follow from the premises. The only allegation of an intent to defraud is made argumentatively, and as a legal inference from facts stated, and that inference is unsound. ’ ’ The contention of defendant also finds support in State v. Pickett, supra. The point, however, was not controlling in the latter case. The main objection was the failure to describe the false pretense, and it was upon that ground that the information was held defective.

We are not disposed to encourage purely technical objections, based upon ancient forms and precedents. With due respect for precedent and rule, we think that when an information, taken as a whole, clearly advises the defendant that he is charged with an offense as defined by the statute, and clearly sets forth the facts on which the charge is based, it is sufficient. Measured by this rule, the information is good. We do not agree with the reasoning of the Massachusetts court, above set forth. A charge of felonious intent is necessarily a deduction or inference from the alleged facts. The charge in the final paragraph of the information sufficiently charges the intent, and appropriately refers to the previous allegations of fact upon which the inference naturally arises.

II. The defendant makes the following objection to instruction numbered 1 given by the court:

‘ ‘ Instruction number 1 is erroneous for the reason that it assumes, and directs the jury, that Ernest Lovan and the Ernest Lovan Investment Company were not the owners of the real estate described; assumes, and directs the jury, that said real estate was not free and clear of incumbrances; assumes,, and directs the jury, that Ernest Lovan knew that said real estate was not free and clear, and assumes, and directs the jury, that Lovan knew it was mortgaged. ’ ’

Said instruction is as follows:

“The court instructs the jury that if they find and believe from the evidence that at the county of Jackson and State of Missouri, at any time within three years next before the 29th day of October, 1910', the date of the filing of the information in this case, the deféndant, Ernest Lovan, with intent -unlawfully and feloniously to cheat and defraud one George F. Han-nay, did falsely, fraudulently and feloniously represent and pretend to the said George F. Hannay that he, the said Ernest Lovan and the Ernest Lovan Investment Company, a corporation organized and existing under the laws of the State of Missouri, were then and there the owners in fee simple, free and clear of all incumbrances whatsoever, of the real estate set out. and described in the information as lying- and being in Morgan county, Missouri; and that the said George F. Hannay was then and there the lawful owner of one hundred and twenty-seven and two-sevenths shares of the capital stock of the Palace Stable Company, a corporation organized and existing under the laws of the State of Missouri, and engaged in Kansas City, in said State, and that said shares of stock were at said time of the value of thirty dollars or more, and of one hundred and sixty shares of the capital stock of the Fashion Stable Company, a corporation organized under the laws of the State of Missouri, and engaged in Kansas City,' in said State, which said shares of stock were at said time of the value of thirty dollars or more, and that the said Ernest Lovan then and there offered and proposed to him, the said George F. Han-nay, that he, the said Ernest Lovan, would then and there trade, transfer and convey to him, the said George F. Hannay, one half of the. capital stock of the said Ernest Lovan Investment Company, a corporation as aforesaid, and would then and there trade, transfer and, by good and sufficient warranty deed, convey to the said Ernest Lovan Investment Company, one half of the real estate.above described in exchange for the said shares of stock of Palace Stable Company, a corporation as aforesaid, and the said shares of stock of the Fashion Stable Company, owned by said Hannay as aforesaid, and that the said George F. Hannay, believing the said Ernest, Lovan and the Ernest Lovan Investment Company to be the owners of said real estate described as aforesaid, and believing the said statements of said Lovan in that behalf made as aforesaid to be true, and relying thereon and being deceived thereby, was induced by reason thereof to assign, convey, transfer and deliver to the said Ernest Lovan all of the said shares of stock in the said Palace Stable Company and the said Fashion Stable Company, as above set forth and described, by him, the said George F. Hannay, owned as aforesaid, in exchange for one half of the capital stock of the .said Ernest Lovan Investment Company, which he, the said Ernest Lovan, did then and there pretend tg> assign and convey to him, the said George F. Hannay;
“And if the jury further find that whereas in truth and in fact neither the said Ernest Lovan nor the said Ernest Lovan Investment Company was then and there the owner of the said real estate as herein-before- described, free and clear of incumbrances;
“And if the jury shall further find that whereas in truth and in fact the said Ernest Lovan and the Ernest Lovan Investment Company, or either of them, was not then and there the owner of the lands in Morgan county, Missouri, hereinbefore mentioned and described, free and clear of all incumbrances whatsoever, but that the said land and every part thereof was then and there incumbered with a valid and subsisting mortgage lien of fourteen hundred dollars, by virtue of two deeds of trust both dated July 3, 1909, executed by J, E. Snodgrass to J. E. Berry to secure the payment of two promissory notes of even date for six hundred dollars and eight hundred dollars, respectively, the former due in nine months after its date, the latter due one year after its date, both notes drawing interest at the rate of seven per cent per annum, said mortgages being of record in the office of the recorder of deeds of Morgan county, Missouri, in Book 21, pag-e 396, all of which he, the said Ernest Lovan, then and there well knew;
“And if the jury further find and believe from the evidence that the said Ernest Lovan, by means of the said deception and false and fraudulent statements and pretenses, if any, so made as aforesaid, then and there unlawfully, knowingly and fraudulently and feloniously did obtain of and from him, the said George E. Hannay, the said shares of the capital stock of the Palace Stable Company and the said shares of the capital stock of the Fashion Stable Company; as above described, and the said property was of the value of thirty dollars or more, then you will find the defendant guilty as shown in the information, and assess his punishment at imprisonment in the State Penitentiary for a term of not less than two years and not more than five years.”

The use of the word “whereas” in the negative part of this instruction is awkward and meaningless. Still, by using before it the words, “If the jury shall further find that,” the defect pointed out by this court in State v. Steele, 226 Mo. 583, cited by defendant, is cured.

Defendant offered, and was refused, an instruction directing the jury to acquit, on the theory that there was a failure of proof. The information describes the land in Morgan county as follows:

“The west half of southeast quarter and southeast quarter of northeast quarter and the northeast quarter of the southeast quarter, all in section 10, township 40, range 19, containing 160 acres; and the east one half of the northeast quarter of section 15, and the southeast quarter of the southeast quarter of section 10, township 40, range 19, containing 120 acres, all in Morgan county, Missouri;” making in all 280 acres.

- Hannay testified that defendant told him that he owned 280 acres in Morgan county, Missouri, free and clear of incumbrances, and gave him a list of the lands owned by him, all of which lands he said were clear and free of incumbrances, except those designated otherwise in the list, and that he copied this list into the contract read in evidence. In that contract appears this item in the list of lands: “280 acres, Morgan county, Missouri, $3500.” Hannay further produced and put in evidence two deeds, one for 160 acres and one for 120 acres, in Morgan county, Missouri. The description in the two deeds taken together correspond to the description in the information. Han-nay testified that defendant handed him these two deeds, in response to his request' for a description of the 280 acres mentioned in the list in the aforesaid contract, and told him that they covered that property. All this testimony was strenuously objected to as not sustaining the description of the property in the information, and also because these deeds were handed to Hannay by defendant after the transaction complained of was completed. The deeds were admitted for the sole purpose of establishing a description of the 280 acres. We think the court committed no error in overruling the objections, and consequently no error in refusing the instruction offered by defendant. The introduction in evidence of the two deeds and the testimony therewith tended to establish the identity of the 280 acres mentioned in the contract, and the subject of the alleged representations, with the land described in the information.

III. The testimony for the State developed the fact that at the timq when the alleged representations were made by defendant concerning the Morgan county land tfie same was incumbered by two deeds of trust of several hundred dollars each. Defendant testified that he told Hannay of the existence of these two incumbrances, and told him, further, that he had an arrangement with the holder of them, Mr. J. J. Swofford, by which he could get them at any time and clear-them. Mr. Swofford testified that he held the two deeds of trust on this Morgan county land, and that they had been put up with him by defendant as collateral for a loan. Defendant’s counsel asked Swofford, in substance, whether he had a conversation with defendant with reference to surrendering these, notes. Objection by the State was sustained. Defendant urges that this ruling was error materially affecting his rights. The State contends that defendant has no standing to urge this assignment, because he made no formal offer to show such arrangement to take up the notes as defendant claimed, and further that, even if there had been such an arrangement, it would be immaterial. The defendant’s counsel sufficiently indicated their purpose, and the court so understood it. The ruling of the court was put upon the ground that such arrangement was immaterial inasmuch as it had not been carried out. We think the objection to this line of inquiry should have been' overruled. If an arrangement existed by which defendant could at any time clear the lien of these deeds of trust, that fact would be material upon the question of intent. Defendant had testified, without objection by the State, that he had told Hannay that he had an arrangement-with Swofford by which he could at any time get these notes and deeds of trust. We think testimony upon this point from Swofford would be competent, in corroboration of the testimony of defendant. If defendant pledged these mortgages to Swofford, it is fair to assume that he owned them. Suppose he had not pledged them, but was holding them as owner — it is conceded that he had title to the land — and had said, under such conditions, that the land was clear of incumbrances, it would hardly be claimed that such facts could not be shown upon the question of criminal intent. Yet, if he had an agreement by which he could certainly clear the land of these mortgages, although they were hypothecated, and intended so to do, the effect would be practically the same so far as the facts related to a criminal intent. The ruling of the court was prejudicial error, and must result in a reversal of the judgment.

IY. In his opening statement the prosecutor detailed to the jury certain facts which he proposed to prove, concerning another transaction involving defendant, and of a fraudulent nature. Objections by defendant were overruled. A witness was permitted to testify to the facts of this transaction, against defendant’s objection. After the testimony was in, the court ruled it incompetent, and withdrew it, by verbal direction, from the jury. The unfairness to defendant of such proceeding is obvious. The evidence was damaging to the character of the defendant. The court, by this ruling and direction, withdrew it from the jury in form, but was it within the court’s power to withdraw it from their consideration in fact? It is easy to believe that a man who has done wrong once will do wrong again. The converse of this is recognized by the law when it permits proof of good character to be given in evidence in favor of a defendant. Out of consideration for the defendant, our law, whether wisely or not, refuses to permit the State, in making out its case, to give evidence of bad character, or of former crimes committed by the defendant; yet knowledge of bad' character and former offenses is exceedingly persuasive to belief in the truth of the present charge. It is practically impossible for a man sitting in judgment to exclude from the final make-up of his mind facts which have lodged there, even if the court gravely tells him that such facts should not have been disclosed, and tells him, further, not to consider them. The court does not tell him that such statements are not true. The objections by counsel for defendant probably convince him that they are true. He may believe that the witness has testified truthfully to facts which the court tells him he should not consider. So that to the juror it must appear that he is directed to exclude from consideration the truth, and a truth of a most convincing character. He is unable to. obey this direction if he would. Hence, so long as this rule of exclusion is the law, it is incumbent upon the court to see to it that such evidence does not get before the jury. We have suggested what we regard as the proper course in such case in State v. Hyde, 234 Mo. 200. In the case at bar it would have been a simple matter, when the objection was first made to the opening statement, to send the jury out, get a full statement from the prosecutor, and rule on the question. Whether a case should be reversed where this is the only error committed, we need not decide, as the ruling on a retrial will no doubt conform to the views expressed above.

Y. It is finally urged that the contract read in evidence does not sustain the charge in the information. It was argued that the written contract does no more than bind the defendant to a guaranty of title, and does not amount to an assertion of present clear title. If the case depended solely upon the written contract, this point might be worthy of serious consideration, but the prosecuting witness swears that the defendant assured him verbally, before the written contract was drawn, that the land was unincumbered.

The rule applied in civil cases in actions upon written contracts, namely, that prior conversations and oral agreements are merged in the writing, can have no application here. Fraud is not merged in a written contract. [Gooch v. Conner, 8 Mo. 391.] There is no question here as to the contract between the parties or that the writing does not truly state it. Where the written contract itself was brought about by fraud, proof of that fraud may be in parol. Wlien the parol testimony was offered, defendant did not object, presumably because counsel saw no grounds for objection. In our judgment, none existed.

Because of the error committed in ruling out the testimony of witness Swofford, the judgment is reversed and the cause remanded.

Brown, P. J., and Kennish, J., concur.


source: Caselaw Access Project

author: BLAIR, C. PER CURIAM.

license: Public Domain

text:
    THE STATE v. SIMON MINTZ, Appellant.
    Division Two,
    November 13, 1912.
    CRIMINAL LAW: Testimony of Coindictee: Credibility: Cautionary Instruction. Sec. 5242, R. S. 1909, giving the State the right to show, for the purpose of affecting his credibility, that a defendant who has taken the stand is the person on trial, does not include the case of a coindictee, not on trial, testifying as a witness, and it is error warranting a reversal for the court to instruct that such an one is a competent witness for the defendant, “but the fact that he is jointly indicted and his interest, if any, in the result of the case, may be considered by you in determining the credibility of his testimony — yet, as a whole, you should receive and consider his testimony like that of any other witness,”, etc.
    Appeal from St. Louis County Circuit Court. — Hon. John W. McElhinney, Judge.
    Reversed and remanded.

      A. E. L. Gardner, Grant Gillespie and Thomas B. Harvey for appellant.
    The court erred in, directing the attention of the jury to Meyers, a witness for the defendant, pointing him out, commenting upon his testimony and warning the jury regarding his credibility. The witness was a eoindictee of appellant, but he had taken a severance and was not upon trial with appellant. Yet the court gave the aforesaid instruction as if he was upon trial and which would have been proper under the decision of this court. All of such decisions, however, beginning with the case of State v. Maguire, 69 Mo. 197, justify the giving of such an instruction with reference to the testimony of the defendant, on the sole ground that Sec. 5242, R. S. 1909, authorizes it. It will be observed from the reading of the aforesaid section, however, that it relates only to “the person on trial or examination” and neither said section nor any other section of our code attempts to authorize or justify the court in giving an instruction relative to the testimony of any person except the one on trial or the husband or wife of the person on trial. We hardly think that it will be contended by the Attorney-General that the court is permitted to call the attention of the jury to a particular witness and remind them of the fact that the witness has an interest in the case; but we will cite á few recent and pertinent cases decided by this court and upon this point. Stetzler v. Railroad, 210 Mo. 712; Zander v. Transit Co., 206 Mo. 461; Huff v. Railroad, 213 Mo. 515; Montgomery v. Railroad, 181 Mo. 477; Conner v. Railroad, 181 Mo. 415; Shepard v. Railroad, 189 Mo. 362; Quinn v. Railroad, 218 Mo. 555. We don’t apprehend that it will be contended that the rule in regard to instructing upon the credibility of witnesses is different in criminal procedure from that in civil procedure; indeed, if there is any difference, the rule should be more strictly enforced in regard to criminal evidence, as was well said by this court in the case of State v. Martin, 229 Mo. 641.

      Elliott W. Major, Attorney-General, Campbell Cummings and John M. Dawson, Assistant Attorneys-General, for the State.
    Instruction 14 told the jury they should receive and consider the witness.Meyers’s testimony like that of any other witness, and subject to the same rules as explained in the other instruction. State v. Hunt, 91 Mo. 491; State v. Gatlin, 170 Mo. 354; Underhill on • Crim. Ev. (2 Ed.), Sec. 70.
   BLAIR, C.

— Convicted of burglary in the second degree and larceny, defendant was by the circuit court of St. Louis county sentenced to serve four years in the penitentiary and has appealed.

Defendant was indicted jointly with Michael O’Connor and George Meyers but was’ separately tried. Meyers, who had not yet been put upon his trial, testified in defendant’s behalf, denying any conspiracy with defendant, or any other person, to commit the crime charged, denying complicity in it and also denying any personal acquaintance with' defendant. The State’s theory was, and its evidence tended to show, that the three coindictees, with another, conspired to commit the offense and that Meyers and O’Connor did the actual breaking, entering and stealing, the part of Mintz being to gather up the goods thrown from a moving car by them.

With respect to Meyers’s testimony the court, over defendant’s objection, gave the jury the following instruction:

“The witness George Meyers, although jointly indicted with the defendant Samuel Mintz, is a competent witness on behalf of said defendant, Mintz; but the fact that he is jointly indicted and his interest, if any, in the result of the case, may be considered by you in determining the credibility of his testimony. Yet, as a whole, you should receive and consider his testimony like that of any other witness and subject to the same rules as explained in other instructions.”

It is earnestly insisted that the giving of this instruction constituted reversible error. An instruction identical in character but, in terms, applicable solely to a defendant on trial was held not erroneous in State v. Maguire, 69 Mo. l. c. 202, 203, on the ground that there was no impropriety in giving it since ‘ ‘ men of sufficient intelligence to sit upon a jury need not he told that the fact that one is on trial for crime may be considered by them in determining the credit to be given by them to his testimony.” On the authority of this decision, like instructions have been held innocuous in numerous subsequent cases. As late as State v. McDonough, 232 Mo. l. c. 228, it was said by this court, with respect to a similar instruction: ‘ ‘ This instruction has been given in criminal cases in the courts of this State for over thirty years. It has been considered and approved by this court in many cases and we are unwilling to hold that the trial court committed reversible error in giving it in this case.”

The correctness of these decisions is not assailed by counsel hut it is urged that whether sound or otherwise they are not in point because the decision in the Maguire case, upon which the series is founded, was grounded upon the statute (E. S. 1909, Sec. 5242) which removed the ban of incompetency from the testimony of a defendant in a criminal case, while, it is declared, no statute is available as the basis of a like rule and like instruction in the case of a codefendant, not put upon his trial, who testifies for a defendant jointly indicted with him.

At common law “one of two or more joint defendants cannot be a witness for or against another, even on a separate trial, until the case as to himself is disposed of, by plea of guilty, or a verdict of conviction or acquittal or a discharge on a plea in abatement.” [State v. Chyo Chiagk, 92 Mo. l. c. 402, quoting 1 Bishop, Crim. Proc., Sec. 1020.] In that case (407, et seq.) it was held that the identical clause of the identical section (then Sec. 1918, E. S. 1879) which rendered the defendant competent as a witness, and which had been mentioned in discussing the instruction as to the defendant complained of in the Maguire case, was the section and clause which changed the common law rule and rendered a codefendant competent to testify in behalf of one jointly indicted with him. The court in that case (l. c. 407, 408), in order to avoid absurdity, construed the words “person on trial or examination” to include a codefendant not on trial or examination and has uniformly adhered to that construction, to which silence has for over two decades evidenced. legislative consent. That construction, nevertheless, does not destroy all difference between a defendant on trial and a codefendant testifying for him nor does it increase or diminish the interest of either in the result of the trial. The Maguire case simply holds harmless the instruction there considered and later cases go little further. The practically invariable appearance of that instruction (as to the defendant on trial) in transcripts in criminal cases is somewhat singular in view of the fact that its uselessness is all that' saves it from condemnation and in view of the further fact that when it first appeared in this court it was, in effect, declared an insult to the intelligence of the jury to which it was given. ■ Like instructions have not always escaped with even the mere “left handed compliment” paid that in Maguire’s case (State v. Barrington, 198 Mo. l. c. 126, 127), and are not tolerated in civil cases. [Stetzler v. Railroad, 210 Mo. l. c. 713, 714.] So far such instructions have been applied solely to a defendant, on trial in a criminal case.

We are asked now to sanction the extension of the principle, if such it can be called, to a new and different class — codefendants not on trial. The reasons (quoted) which have induced the mere refusal to reverse when like instructions have been applied to defendants on trial would seem not to be of a character to produce the firmest conviction that they may, withoiit question, be applied to other classes of witnesses. The interest of a defendant on trial in the result of the case and the interest of a codefendant who testifies for him are different things. As to the former the verdict settles the question of life or liberty. As to the latter the measure of his chief interest would seem to be the difference between the value to him, when he comes to be tried, of the then defendant’s testimony as affected by acquittal or conviction in the case on trial. This difference is considerable and though the interest of the actual defendant in the result be said to be so great and so apparent that he who runs may read and, consequently, no harm comes to him because the court notes it and needlessly tells the jury of it, yet in the case of the codefendant whose interest is equally apparent but much less in intensity, has the court the right to point at him its warning finger and, in effect, place him. with respect to the degree to which his credibility is to be impaired by his interest, in the same category with the defendant himself? This is exactly what it does by giving the instructions as to the two. In fact the same instruction may include them both, if the instruction in this case is to be approved.

The fact that the statute referred to, as always construed, includes alike the defendant on trial and a codefendant not on trial, does not, of itself, make the decision in State v. Maguire and subsequent like cases authorities in the present case, that statute in nowise affirmatively authorizing any separate instruction as to the credibility of any one within ^ its purview, the ground of the decisions mentioned being merely that the obviousness of a defendant’s interest renders the instruction as to him harmless as well as useless and there being a marked difference between the interest of a defendant on trial and that of a co defendant who testifies for him. In truth the statute, so far as now pertinent, merely lays down a rule ■ of evidence and cannot be said to authorize giving a specific instruction as to the credence to be accorded any of those-whom it renders competent as witnesses. It has no-more of such efficacy than has any other rule admitting impeaching evidence, whether such rule emanates from a legislative or common law source. The instruction in this case is a dangerous one and opens the way to grave abuses. It gives too much weight to the mere fact of indictment. It goes to the jury as indubitable proof that the judge of the court and the law itself look with suspicion upon the witness pointed out. The closing-sentence “on the whole,” etc., does-not cure the error, and serves no purpose save to show that in the draftman’s consciousness there struggled toward the light the conviction that the instruction in some way was wrong and its first declaration ought to be qualified. The result was contradiction and absurdity. What has been said is put distinctly upon, the ground that though such an instruction may be harmless as to a defendant on trial, its effect upon the testimony of a coindictee testifying in a case in which -he is not on trial presents a different question for decision.

The rule requiring cautionai’y instructions to be given concerning the care with which the jury should scrutinize the testimony of an accomplice who testifies for the State, furnishes no support for the instruction given in this case concerning the testimony of a coindictee. That rule is based upon the fact that one who goes upon the stand at the State’s instance and confesses his infamy is to an extent impeached from his own lips, and that there is grave danger that such a one may, in order to escape the punishment he confesses he deserves, substitute another as the actual perpetrator of the crime. [State v. Chyo Chiagk, supra.] A coindictee, testifying for his codefendant and denying all complicity in the crime, is obviously in no such situation, and if his testimony, is open to suspicion it is for entirely different reasons.

The complaint made of the action of the trial court in putting appellant upon his trial on several counts need not be discussed since all but one of the burglary and larceny counts were dismissed and defendant was found not guilty on the count charging him with receiving stolen property. The question cannot arise on another trial. Also, the court will doubtless obviate, on a retrial, the objection now made that it failed to give-an “alibi” instruction. [State v. Bobbitt, 228 Mo. l. c. 268, et seq.] Other matters are mentioned in the briefs but become unimportant in view of what has already been said.

The judgment is reversed and the cause remanded.

Boy, G., dissents.

PER CURIAM.

— The foregoing opinion is

adopted as the opinion of the court in so far as it reverses the judgment and remands the cause for prejudicial error in giving the cautionary instruction as to the testimony of the codefendant. Such an instrue-' tion has been held proper as to the testimony of the defendant on trial many times by this court, but it has been so held because, as said in the case of State v. Maguire, 69 Mo. l. c. 202: ‘ ‘ The instruction simply declares the law. The statute authorizing the accused, in criminal cases, to testify in his own behalf,, provides that the fact that he is the person on trial! ‘may be shown for the purpose of affecting his or her credibility.’ It certainly gives the jury, if properly composed, no information. And the legal proposition!, it asserts is incontrovertible.” The statute giving the State the right to show that the defendant is the person on trial or the husband or the wife of such person “for the purpose of affecting the credibility of such witness,” does not include the case of a codefendant testifying as a witness. And while we have-construed the statute as authorizing a cautionary instruction as to the testimony of the person on trial., or the husband or wife of such person, the statute affords no basis for such an instruction as to a codefendant, nor, so far as we are advised, has such an instruction ever been approved by this court.


author: PER CURIAM.

text:
    THE STATE v. JOHN MERICLE, Appellant.
    Division Two,
    November 13, 1912.
    APPEAL: No Affidavit: Dismissed. W'here no affidavit for an appeal was filed by appellant, as required by Sec. 5292, R. S. 1909,. the appeal, upon motion of the Attorney-General, will be dismissed.
    Appeal from Jasper Circuit Court. — Hon. Henry L. Bright, Judge.
    Appeal dismissed.

      B. M. Sheppard for appellant.

      Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.
    A motion to dismiss the appeal in this case has been filed by the State. Under Sec. 5292, B. S. 1909, as it formerly stood, no affidavit for appeal was necessary in a criminal case. State v. Smith, 190 Mo. 714. Hut the Legislature in 1909 so amended that section as to make an affidavit necessary. It adopted the exact language of the statute on this subject applicable to civil cases. Sec. 2040, R. S. 1909. In adopting the language of another statute, the Legislature adopted it with its previous construction. Endlich on Inter, of Statutes, Secs. 367, 368; Lewis’ Sutherland Stat. Const., Sec. 399; Sedgwick Const. Stat. & Const. Law, pp. 214, 215; Handlin v. County, 57 Mo. 116; Easton v. Courtright, 84 Mo. 34; Mason v. Fearson, 9 How. 258. The civil statute has been construed to mean that an affidavit therefor was an essential prerequisite to the granting of an appeal. Clelland v. Shaw, 51 Mo. 440; State ex rel. v. Kenchler, 83 Mo. 194; Peters v. Edge, 87 Mo. App. 284; Greenwood v. Parlin, 98 Mo. App. 408. “The right of appeal is statutory.” State v. Smith, 190 Mo. 714.
   PER CURIAM.

— It is disclosed by the record in this case that the purported appeal therein was allowed by the court at the January term thereof, 1910, and further that no affidavit for an appeal was filed by the appellant as required by Sec. 5292, R. S. 1909. The Attorney-General has filed a motion to dismiss, the appeal for failure to comply with that statute. The right of appeal is statutory, and as the filing of an affidavit in the form prescribed by said section is made one of the conditions upon which an appeal shall be allowed, and such affidavit was not filed in this case, the motion to dismiss the appeal must be sustained. It is so ordered.


author: KENNISH, J.

text:
    THE STATE v. WILLIAM CHISSELL, Appellant.
    Division Two,
    November 13, 1912.
    1. FORGERY: Information. An information charging forgery ■which follows closely the language of the indictment in State y. Watson, 65 Mo. 115, is sufficient.
    2. -: Instructions: Upon Law of Admissions. The refusal ' of the court to instruct the jury as to the law upon admissions made by defendant against himself and introduced in evidence by the State, was not reversible error in this case, for two reasons: First, such an instruction is always given, if given at all, at the instance of the State, and the refusal to give it in this case was clearly favorable to the defendant and therefore not prejudicial error; and, second, although the record shows that defendant requested such an instruction and excepted to the action of the court in refusing to give it, such refusal was not made a ground of the motion for a new trial.
    3. --: -: Refusal to Give: Motion for New Trial Must Particularize. The appellant is required to call the court’s attention particularly, in the motion for a new trial, to the question upon which the court failed to instruct the jury, in order to entitle him to a new trial upon such ground. An assignment in the motion that “the court erred in not instructing the jury ■on all the law in the case” is not sufficient to authorize the appellate court to review the trial court’s action in refusing to give an instruction properly declaring the law as to admissions made by defendant against himself.

      4. -: Sufficiency of Evidence. The check purported to have been signed by one Dumont, who testified that the check introduced in evidence was not signed by him and was not his check, and another witness testified that defendant had stated that the check was passed by him, but that it had been signed by a ■colored boy in the wine room of the saloon in which defendant cashed it. Held, that this testimony sufficiently proved the forgery.
    5. -: -: Charge of Having Defrauded a Particular Person: Proof of Another: Variance. Where the information charges that the check Was forged and uttered with the intent to cheat and defraud a particular person, a -conviction is not to f-ail because the proof shows that another person was actually defrauded. It is unnecessary, under the statute, to charge the name of the person defrauded, and where the pleader goes further than tne statute requires and charges the name of the person defrauded, the prosecution is not to fail because the proof fails to sustain that charge. Where the charge is that the cheek was forged with the intent to defraud a barkeeper, who cashed the same from money taken from the cash drawer, and the proof is that the money belonged to the proprietor of the saloon, there is no fatal variance. [Refusing to follow State v. Samuels, 144 jMo. 68, which was substantially overruled by State v. Sakowski, 191 Mo. 635, and State v. Harris, 209 Mo. 433.1
    -6. -: Severe Punishment: Matter for Jury. A punishment of five years’ imprisonment for forging and cashing a check for five dollars seems, in its severity, out of proportion to the offense; but it was a matter within the province of the jury, under the statute.

      Appeal from Randolph Oircnit Court. — Hon. Fred Lamb, Special Judge.
    Affirmed.

      A. G. Gladney and E. O. Doyle for appellant.
    (1) The instruction asked by the defendant at the ■close of the State’s evidence and the one at the close of the whole case should have been given by the court, for the reason that there was a fatal variance between the allegations of the information and the proof made by the evidence. State v. Samuels, 144 Mo. 68; State v. Allen, 171 Mo. 562; State v. Young, 237 Mo. 170; Sherwood’s Crim. Law, pp. 371-4. The instructions in the nature of a demurrer at the close of the evidence should have given for the reason.that the forgery of the check was not sufficiently proved, and that the defendant knew that the check was a forgery. State v. Young, 237 Mo. 170. (2) The court erred in not instructing the jury upon the evidence given by the State’s witnesses, concerning the admissions of the defendant, to which they testified. State v. Glahn, 97 Mo. 679; State v. Moxley, 102 Mo. 374. The information if sufficient at all, is so under Sec. 4656, R. S. 1909. State v. Hessletine, 130 Mo. 468; State v. ■Walker, 167 Mo., 366.

      Elliott W. Major, Attorney-General, and Campbell Cummings, Assistant Attorney-General, for the 'State.
    (1) The information is predicated on Sec. 4656, R. S. 1909, and fully charges every element of the ■offense of forgery in the second degree, as defined in that statute. It uses the terms, “sell,” “exchange” and “deliver.” It was held in State v. Watson, 65 Mo. 117, that the use of such words sufficiently describes the offense defined by said section. State v. Samuels, 144 Mo. 71. • The information, if predicated on Sec. 4644, R. S., is valid and sufficient. State v. Hesseltine, 130 Mo. 468; State v. Taylor, 117 Mo. 181; State v. Walker, 167 Mo. 366. (2) There was no fatal variance between the allegations of the information and the proof, (a) There is no allegation in the information that the money paid for the check was the property of Hoffberger. (b) The question of variance was not raised at the trial, and cannot now be urged. State v. Ballard, 104 Mo. 636. (c) Hoffberger was in possession of the money in the saloon as special bailee or custodian. It is proper in offenses committed upon or in relation to property, where there is ownership in one person and possession in another, as special bailee or custodian, to- charge the ownership either as in the real owner or in the person in possession of the property. State v. Moore, 101 Mo. 316; State v. O’Connell, 144 Mo. 396; State v. Gorham, 55 N. H. 152; State v. Sullivan, 104 Mass. 217; Comm. v. O’Hara, 10 Gray, 469; Comm. v. Moore, 14 Mass. 217; People v. Phillips, 72 N. T. 334; State v. Mullen, 30 Iowa, 205; People v. Quinn, 132 111. 333; State v. Kennedy, 31 Fla. 428; State v. Flower, 100-Ala. 96; 2 Bishop Crim. Law, Sec. 789; Wharton’s Crim. Law (9 Ed.), Secs. 932a, 938. There was not a failure of proof, as the charge was laid that appellant intended to defraud a particular person named, and the proof sustained the charge as laid. There was no evidence that appellant knew Hoffberger was not the owner and but a bartender. The question of ownership by bailee was not considered in State v. Samuels, 144 Mo. 68.
   KENNISH, J.

— At the June term, 1911, of the circuit court of Randolph county, appellant was convicted of the offense of uttering a forged check, knowing-the same to be a forgery. The jury assessed his punishment at imprisonment in the penitentiary for a term of five years, and from the judgment entered pursuant to the verdict he appealed to this court.

The information was based on Sec. 4656, R. S. 1909, and charged that the defendant, with intent to defraud one George Hoffberger, sold, exchanged and delivered to said Hoffberger, as true, for the valuable consideration of five dollars, a falsely made and forged check purporting to have been drawn by John Dumont on the Bank of Moberly, for the sum of five dollars, payable to Dan Pattison or bearer, knowing that said check was falsely made and forged.

The evidence for the State, which was somewhat meagre, tended to show the following facts:

At the time the offense was alleged to have been committed George Hoffberger was employed as a bartender at the salmon of Tony Fiorita in the city of Moberly. On March 31, 1911, the defendant went to Fiorita’s saloon, presented the check in question to Hoffberger, and asked him cash it. Hoffberger took five dollars from the money drawer, and paid it to the defendant in exchange for the cheek. Defendant then purchased half a pint of whiskey, paid for it out of the money received for the check, and left the saloon. It was shown by the testimony of Dumont, and by the testimony of other witnesses as to admissions made by the defendant after he was arrested, that the check was a forgery. The testimony concerning the admissions made by the defendant also tended to prove that at the time he passed the check he knew it was a forged instrument.

The defendant did not testify in his own behalf, and the only evidence introduced by him was the testimony of Fiorita to the effect that the money given in exchange for the check belonged to Fiorita and not to Hoffberger.

Such additional facts as are necessary to an understanding of the questions before us for review will be stated in the course of the opinion.-

I. The information was not challenged in the trial court nor is it directly challenged here. However, it is loosely drawn and the language of the averments is such as to raise a doubt whether it was intended to be bottomed upon Secs. 4644 or 4656, R. S. 1909. Because of these facts we have carefully examined the question as to its sufficiency. We shall not set out the information for the reason that it follows closely the language of the indictment in the case of State v. Watson, 65 Mo. 115, and was doubtless modeled upon the form found in that case. The court held the indictment in the Watson case good under said section 4656. That case has been followed in a number of later decisions, and under their authority we hold the information sufficient. [State v. Mills, 146 Mo. 195; State v. Harroun, 199 Mo. 519; State v. Standifer, 209 Mo. 264.]

II. The court instructed the jury upon the subjects of reasonable doubt and presumption of innocence, and gave a general instruction directing the jury that upon a finding of the facts charged in the information they should find the defendant guilty. Appellant does not complain of the instructions given, but assigns as error the action of the court in refusing to instruct the jury as to the law upon admissions made by the defendant against himself and introduced in evidence by the State.

The refusal of the court to instruct the jury as complained of cannot avail the defendant, for two reasons : First, such an instruction is always given, when given at all, at the instance of the State, and the refusal of the court to give it in this ease was clearly favorable to the defendant and therefore not prejudicial error. Second, although the record shows that the- defendant requested such an instruction and excepted to the action of the court in failing to give it, the refusal to give such an instruction was not made a ground of the motion for a new trial. One ground of the motion is that “the court erred in not instructing the jury on all of the law in the case.” Under the doctrine of the recent cases of State v. Conway, 241 Mo. 271, and State v. Dockery, 243 Mo. 592, the defendant is required to call the court’s attention particularly, in the motion for a new trial, to the question upon which the court failed to instruct the jury, in order to entitle him to a new trial upon such ground. That was not done in this case. Certain exceptions to the general rule are recognized in the Conway case, but this ease does not fall within them.

III. At the close of the evidence for the State, and again at the close of all of the evidence, the defendant asked an instruction directing a verdict of not guilty. The court refused the instruction and appellant assigns such action of the court as error. This complaint calls for a review of the incriminating facts relied upon by the State to sustain the verdict, in so far as the sufficiency of the evidence is challenged by appellant.

It is contended that the evidence fails to show that the check described in the information was a forgery. The check purported to be signed by the witness Dumont. That witness testified in behalf of the State that the defendant had formerly worked for him and that he had paid him with checks upon the, bank upon which the check in question was drawn, but he further testified that the check shown to him and introduced in evidence was not signed by him and was not his check. It was also in evidence that the defendant stated after his arrest that the check was passed by. him, but that it had been signed by a colored boy in a wine room of a saloon. We think this testimony sufficiently proved the forgery.

It is also urged that, as the information charged that the check was sold, exchanged and delivered, for the consideration of five dollars, with intent to defraud George Hoffberger, the naming of Hoffberger, though not essential to a proper charge, became and was descriptive of the offense and was therefore necessary to be proved, and that as the uncontradicted testimony showed that the money and whisky paid and (exchanged for the check were the property of the dramshop keeper Fiorita, and not of the witness Hoffberger, there was a fatal variance between the charge and the'proof, and that therefore the court should have given the instruction requested. It is not an element of the crime denounced by said section 4656 that the instrument should have been uttered with intent to defraud sorbe' particular person. All that is required as to the intent in charging an offense thereunder is that the act was done “with intent to defraud. ’ ’

Sec. 4921, R. S. 1909, is as follows:

“It shall be sufficient in any indictment for any offense where an intent to injure, cheat or defraud shall be necessary to constitute the offense, to allege that the defendant did the act with such intent, without alleging the intent of the defendant to be to injure, cheat or defraud any particular person; and on the trial of such offense, it shall not be necessary to prove an intent on the part of the defendant to injure, cheat or defraud any particular person, but it shall be sufficient to prove that the defendant did the act charged with an intent to injure, cheat or defraud.”

' It will be observed that the statute quoted consists of two parts, the former dealing with the charge and the latter with the proof. Each is independent of the other. Whether the pleader unnecessarily alleges the name of the person intended to be defrauded, or omits such name as authorized by the first part of said section, the latter part is equally applicable and in either case it “shall be sufficient to prove that the defendant did the act charged with an intent to injure, cheat or defraud.” The rule invoked by the appellant that when a necessary allegation is set forth with unnecessary detail the proof must support the charge as made, cannot obtain in the face of an express statutory provision to the contrary. Under the facts of this case there can be no doubt that the defendant in uttering the forged check intended to cheat and defraud, and more than that the State was not required to prove. The conclusion reached upon the point under consideration is not in accord with the ease of State v. Samuels, 144 Mo. 68, but we regard that case as substantially overruled by the later cases of State v. Sakowski, 191 Mo. 635, and State v. Harris, 209 Mo. 423.

But, in addition to the foregoing, the averment of the information is that the check was passed with intent to cheat and defraud George Hoffberger, and there was not a variance between this averment and the testimony, for, as stated in 2 Bishop’s New Grim. Proc., Sec. 427, “the intent is presumed ... to. defraud the one to whom the defendant, with knowledge of the forgery, passed or offered the forged instrument for value.” [19 Cyc. 1423; Commonwealth v. Starr, 86 Mass. 301.]

It is further urged that the court should have given the instruction requested, for the reason that the testimony failed to prove that the defendant knew that the check was a forgery at the time he is charged with having passed it. The testimony shows that after the defendant was. arrested he admitted to the witness Turner that he had passed the check on Hoffberger, but that he did not sign it; that “one of the darkeys wrote the check. It was not written by him, but while they were in the wine room.” While this testimony is. rather scant on the question of the defendant’s guilty knowledge, it is uneontradicted, and we think it warranted a finding that the defendant knew it was not Dumont’s check at the time he disposed of it as charged. Our conclusion is that the instruction was properly refused,

A thorough examination of the record has left little doubt as. to the defendant’s guilt, and although the punishment of five years, in its severity, seems out of proportion to the offense charged and proved, that was a matter within the province of the jury. The record does not disclose prejudicial error, and accordingly the judgment is affirmed.

Brown, P. J., and Ferriss, J., concur.


author: FERRISS, J.

text:
    THE STATE v. ASAFF G. WANA, Appellant.
    Division Two,
    November 13, 1912.
    REMARKS OF COUNSEL: Proper Objection: Manner of-Saving Exception. In order to save for review alleged errors arising from improper remarks of counsel in argument to the jury, there must be an objection addressed to the court, a ruling of the court and an exception saved to such ruling. To except to the remarks of counsel is not enough. If an objection is sustained, and the situation calls for a rebuke from the court to counsel who makes the objectionable remark, such rebuke should be requested, and, if refused or deemed insufficient, an exception should he saved to the failure of the court to comply with such request.
    Appeal from St. Louis City Circuit Court. — Hon. George C. Hitchcock, Judge.
    Affirmed.

      John E. Bowcock for appellant.
    (1) The court erred in permitting (without rebuke), one of the attorneys for the State to produce and place upon the table in the presence of the jury an unidentified package (purporting to be the coat worn by prosecuting witness at tbe time of tbe difficulty), and at the time he placed it there exclaiming: “Here it is we will show it to them now!” — the case having at the time been closed, demurrer to same •filed and overruled, the opening argument made and while defendant’s attorney was addressing the jury. (2) The evidence on the part of the State having been that defendant cut the prosecuting witness three times in the back, the coat worn by the prosecuting witness was a material and relevant fact, had it been offered at the proper stage of the proceedings, and being produced at the time it was, defendant was offered no opportunity to cross-examine on this matter and therefore this was highly prejudicial to the interest of defendant. (3) Improper remarks based upon a material matter not in evidence. The counsel for the State in his closing argument to the jury, exclaimed: "We have produced the coat and would show it to you but he [referring to the attorney for defendant] won’t let us.” The court not only refused to reprimand the counsel for making the remark, which of itself was fatal error, but committed a more grievous one, by declaring to the jury, that as a matter of law, that counsel was justifiable not only in the production of the unidentified package but in referring to its production in his argument. State v. Shipley, 174 Mo. 512; State v. Woolward, 111 Mo. 248; State v. Upton, 135 Mo. App. 32L

      Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.
    (1) If any error was committed, it was invited by appellant’s attorney; therefore, appellant cannot complain. This package, after being placed on the-table in response to appellant’s counsel’s remark, was a frivolous matter, as it made no difference one way or the-other, because appellant admitted the cutting and claimed it was done in self-defense. State v. Gny, 69 Mo. 430. Not every random or hasty remark of the prosecuting attorney should he made ground for reversing the judgment. State v. Emery, 76 Mo. 348; State v. Hopper, 71 Mo. 433. (2) The trial court should refrain from comments on evidence, hut the judgment will not he reversed for error in that regard where it does not appear that appellant was not prejudiced by the remarks of the judge. State v. Findley, 101 Mo. 217. (3) Appellant saved no exception to the court’s refusal to rebuke counsel for the State. A request must be made and exception saved to the refusal of the court to rebuke transgressing counsel. State v. Phillips, 233 Mo. 307; State v. Souva, 234 Mo. 571; State v. Harvey, 214 Mo. 403; State v. Howard, 118 Mo. 127; State v. McMullen, 170 Mo. 632; State v. Kullman, 225 Mo. 632; State v. Chenault, 212 Mo. 137; State v. Murphy, 201 Mo. 691.
   FERRISS, J.

— Defendant was convicted of an assault, without malice, and his punishment fixed at four months in jail.

The testimony showed a street fight, during which the defendant cut the prosecuting witness with a knife. He claimed self-defense. The question was as to which one began the fight. The prosecuting witness swore that defendant made the first assault by cutting through. Ms coat, in the back, three times. The de-, fendant’s evidence tended to prove that he was first assaulted and knocked down, and that he then, in self-defense, cut the prosecuting witness in the forehead.

Several errors are claimed in the motion for a new trial, but in this court defendant insists only upon the assignment of error in connection with the following episode, which occurred during the final arguments. As taken in full from the record, here is what transpired during the closing argument by Mr. Bow-cock, attorney for defendant: ' '

“By Mr. Bowcock: We had the knife here in court. Where is that coat? Don’t you know that if that man had been cut in the back, the State would have the coat here' to show the holes? It had the power. It cannot get back of the subterfuge — like the talk about this mysterious boy. [At this point, counsel for the State placed upon the counsel table a package wrapped in paper, saying, ‘Here it is.’] You can show nothing now, sir; you have closed your case; it is not before the jury, and you have no evidence on that. Where is the boy? Where is the boy, with the process of this court?”
Afterwards, during the closing argument of connsel for the State, there occurred the following:
“Mr. Smith: Now, gentlemen, he asked you, ‘Where is the coat?’ I am willing to produce it. -If we produce the coat to you. to see, they would say that was a frame-up, no doubt.
“Mr. Bowcock: Now, your Honor, I didn’t interfere with the gentleman. He knows as well as I that after the State’s case is closed, and the entire case is closed, he cannot bring anything up, and say, ‘I will offer it now.’
“The Court: He said that, and you refused it.
“Mr. Bowcock: I said he knows it is the law.
“The Court: If you wanted to see that coat—
“Mr. Bowcock: I wanted it during the evidence; not after the case was closed.
“Mr. Smith: You don’t want it now?
“Mr. Bowcock: No, sir.
“The Court: That ends it.
“Mr. Bowcock: Because it is not according to law.
“Mr. Smith: That is all right, gentlemen. He does not want the coat now. As I said before, if we offered it, then we would run the risk of incurring his charge that it was a frame-up:
“Mr. Bowcock: We save an exception.”

The comment of Mr. Bowcock on the failure of the State to produce the coat was legitimate argument. The subsequent acts and remarks of the prosecutor were highly improper, and should have been severely rebuked by the court. Still, we cannot perceive reversible error. We must, in the interest of orderly procedure, adhere firmly to the rule that proper objections must be made to the court and exceptions saved to the court’s ruling in order to entitle a party to a hearing here on alleged errors. When the prosecutor produced the bundle which he said* was the coat, defendant’s counsel asked no action or ruling by the court. He said nothing to the court, but contended himself with dealing directly with the prosecutor in a manner which he apparently regarded as satisfactory. There was no objection addressed to the court. Counsel simply refused the offer made by the prosecutor, and advised him that, inasmuch as the case was closed, the Coat was not before the jury.

When Mr. Smith, the prosecutor, in the course of his argument, made the remark complained of, Mr. Bowcock did not ask any ruling from the court, and no ruling was made. The colloquy that ensued does not amount to a ruling on any request or objection. After this, Mr. Smith made a further remark to the jury, and the incident was closed by Mr. Bowcock saying, “We save an exception.” An exception to what? Apparently to the remark of counsel. There seems to be a misapprehension-on the part of counsel, in many cases that come here, as to the proper method of saving for review alleged errors arising from improper remarks of counsel in argument to the jury. In order to save the point for review, there must be an objection addressed to the court, a ruling by the court, and an exception saved to such ruling. To except to the remark of counsel is not enough. Exceptions go to the rulings of the court. If objection is made to a remark of opposite counsel in his argument to the jury, and the court overrules the objection, an exception to the ruling of the court must be saved. If the objection is sustained, and the situation calls for a rebuke from the court to counsel who makes the objectionable remark, such rebuke should be requested, and, if refused or deemed insufficient, an exception should be saved to the failure of the court to comply with the request. The same course should be taken with regard to any ruling or order requested. In this case, no ruling or order by the court was requested; none was made by the court, and there was no exception to the action or nonaction of the court. Apparently, counsel was satisfied with the attitude and remarks of the court. The only exception was directly to the remark of counsel; but this, as we have shown, cannot avail.

In the motion for new trial it is stated that the court was requested to reprimand counsel, and to instruct the jury not to consider the offer to produce the coat. It is also stated that the court, of its own motion, told the jury that counsel for the State had a right to call attention to the fact that the coat was there. We find nothing in the record to bear out these statements. All that appears in the record on this point appears in the excerpt set out above.

The verdict of the jury, finding assault without malice, indicates that they were not influenced by the matters complained of, and consequently the rights of defendant were not prejudiced.

Finding no reversible error, the judgment is affirmed.

Brown, P. J., and Kennish, J., concur.