Opinion
No. 43318.
March 9, 1953.
APPEAL FROM CIRCUIT COURT, BUCHANAN COUNTY, DUVAL SMITH, J.
Grace S. Daynovsky, St. Joseph, for appellant.
J. E. Taylor, Atty. Gen. and B. A. Taylor, Asst. Atty. Gen., for respondent.
Maxine Michels was tried before a jury and convicted in the Circuit Court of Buchanan County for obtaining property under false pretenses, in violation of Section 561.370 RSMo 1949, V.A.M.S., and she appeals. (All statutory references are to the same revision and work unless otherwise noted.) The property charged to have been so obtained consisted of a piece of luggage (a "Pullman" case) of the alleged value of $33.55, and a man's sweater allegedly of the value of $7.09.
There is a limited challenge of the information, to which attention will be first directed. The information is based upon that portion of section 561.370 providing that "Every person who, with intent to cheat or defraud another, shall designedly * * by any other false pretense, * * * obtain from any person any * * * personal property * * * shall upon conviction thereof be punished * * *." The allegation of the false pretense upon which the accused obtained the property in question is that she represented herself to the victim as being another, to-wit, Mrs. Clifford Larson, a person with a good credit rating. The ground of attack upon the information is that it fails to state an offense, in that an essential element thereof, as defined by the statute, is omitted. More specifically, this contention is based on the want of allegations under the following provision of the section: "* * * and shall in pursuance of such intent to cheat and defraud, after obtaining possession of any such property, sell, transfer, secrete or dispose of the same before paying or satisfying the owner or his agent, clerk or servant * * *."
Defendant's objection is unsound for the plain reason that the quoted provision applies only in those instances, as specified in the next preceding portion of the same sentence, where, with intent to cheat and defraud another, one agrees or contracts with such other person for purchases to be paid for on delivery. The charge in this case is not based on any such agreement or contract, but upon facts falling within the condemnation of another and different portion of the statute, as we have just seen. As said of a cognate statute (now section 561.450) in the case of State v. Scott, Mo.Sup., 230 S.W.2d 764, 767: "Under this statute the obtaining of money, property or other valuable thing, with intent to cheat and defraud, by use of the different methods therein named are prohibited. Only one of those * * * methods is charged in this information. Only one method need be charged." The contention is disallowed. The effect of this holding is necessarily to rule adversely to defendant her further claim that, because of the failure of the proof to show this supposedly omitted element of the crime, the court should have directed a verdict of acquittal.
The state's evidence was to the effect that in December, 1950, defendant went to the credit department of Hirsch Brothers Dry Goods Company (a corporation) in St. Joseph, and made written application to open a charge account. Her negotiations were with Wm. R. Wenz, the office manager who was in charge of credits. She falsely represented in her application that her name was Mrs. Clifford Larson, whose address she gave as 507 1/2 So. 6th Street, St. Joseph, formerly 1610 Bennington, Kansas City. In her application she also gave the following information: Husband's employer, Sheffield Steel Company; wife's employment, none; relative, Maxine Michels, 507 1/2 So. 6th Street; authorized buyers, self and husband. Investigation of Mrs. Larson's credit was made through a credit bureau, and her rating being found satisfactory ("very prompt, satisfactory and substantial salary"), an account was opened accordingly. Wenz testified that with respect to the accounts of married persons it was the store's practice and custom to open them in the name of both spouses, and that this was done in this instance. An employee of the store (a saleslady) identified defendant as the person to whom she sold and delivered the articles in question, and also identified the two separate sales checks therefor (in her own handwriting), showing the date of such purchases as December 28, 1950. Under the terms of the application, all charges were payable within 30 days after rendition of the regular monthly statements. A statement mailed to Mrs. Clifford Larson at the 6th Street address was returned. An investigation disclosed that no such person lived at that address, then or previously. Further prompt investigation lead to the institution of this prosecution, and to the apprehension of defendant in Kansas City on February 4, 1951. Police officers who returned her to St. Joseph testified that she then had in her possession three pieces of luggage which she admitted having bought on credit at Hirsch Brothers under the name of Mrs. Clifford Larson. She also admitted her own identity as Maxine Michels, and stated that Mrs. Clifford Larson was her sister-in-law who lived in Kansas City. Other facts, if pertinent, will be stated in connection with the points to which they relate.
On the day of trial the court permitted the state to endorse upon the information the name of Mrs. Edith Pugh as a witness, and to correct the name of "William R. Wing" (already appearing thereon) so as to read "William R. Wenz." The contention here is that defendant was "taken by surprise by this movement and could not have in any way anticipated the possibility of these persons being witnesses for the state, and what testimony might be given by them." Apart from the failure of the record to show any objection to the action now challenged, it is sufficient to say that the newly endorsed witness was not called, and did not testify, and that the correction in the spelling of the credit manager's name was a formality, the effect of which was manifestly not prejudicial to defendant in any respect.
Defendant complains of the introduction in evidence of sales checks representing charge purchases of items other than those mentioned in the information, and which were shown to have been made by defendant in person during the month of January, 1951, notwithstanding the fact that substantially all of them (including the two covering the items charged in the information) purport and do show on their face that they are charged to the account of Clifford Larson (not Mrs.), and that the purchases were made by "self." Of course, the wording of the sales checks was not conclusive, it being within the province of the jury to accept the saleslady's explanation that she filled them out in that manner because it was the custom to make charge to a husband, showing the purchase as by "self," even though the transaction was actually through the wife. Complaint is also made that a "Pullman" case and two other pieces of luggage were introduced "without proper identification or marking of positiveness as to whether or not they were the ones that were involved in the alleged information." This luggage was identified as being "like" or "of the same kind" as that sold to defendant, or taken from her possession when she was arrested, but no witness positively identified it as being the precise or particular articles so sold to her. The sales checks representing items other than those mentioned in the information were admitted, as stated by the court, on the authority of State v. Hotsenpiller, 359 Mo. 1031, 1036, 224 S.W.2d 1014, 1017, under the general rule, there reaffirmed, "that in false pretense cases evidence of attempts to commit other similar offenses either before or after the one on trial, if not too remote, is competent to prove the scienter or intent of the accused, that being an essential ingredient of the crime."
The defense did not involve a denial of the purchases (nor of the representation charged), but the opening statement on the part of defendant amounted to a tacit admission thereof, as will appear from these excerpts in relation to what defendant's proof would show: "During the period of time the defendant might have purchased various items from Hirsch Brothers Dry Goods Company, that at all times there was no intent in her mind to defraud. * * * The testimony will show that Maxine Michels had authority to do so, and did in the past, go out and purchase articles under the name of her brother. We will show she made a diligent effort to pay off these bills. * * * The main point is that we are, in presenting our evidence, attempting to prove to you that there was no intent on the part of this defendant to defraud any of the parties involved. I am sure after you hear this testimony that you will concur in that fact." Defendant did not testify, but introduced evidence (including a receipt, the authenticity of which is not disputed) showing payment by an unidentified person, on behalf of defendant, of the Hirsch Brothers account, in the sum of $224.11, on October 3, 1951, 13 days before the trial. This amount largely exceeded the purchases evidenced by the sales checks to which objection is made. What other inference could be drawn from this showing except that of the fact of purchases other than those charged? When thus contrasted against the background of the defense interposed, the untenability of the objections urged against admission of the evidence in question is given much emphasis.
Where, as here, the articles alleged to have been wrongfully obtained where ostensibly bona fide purchases at retail in the usual course of business, prima facie their value (in the sense of being sufficient to take the case to the jury on that issue) is the price at which the sale was made. Measured by that standard, the values of the "Pullman" case and sweater, as shown by the evidence, were (exclusive of sales and Federal Taxes), respectively, $27.50 and $6.95 Consequently, and in the absence of any identification or pointing out of the particular evidence of which complaint is made, we overrule the contention that the court erred in "admitting evidence that was not positive as to valuation," as now claimed.
It is objected that inasmuch as the man's sweater was not offered in evidence, this circumstance alone precluded submission of the question of defendant's unlawful obtention of it, as was done under the state's main instruction. A sufficient answer is that prosecution under this statute is in no sense dependent upon recapture of the thing alleged to have been obtained.
In reply to a question as to whether or not the defendant was Mrs. Clifford Larson, one of the state's witnesses, a police officer to whom she was known, stated that that was one of her aliases. It is charged that the state was "thereby allowed to show to the jury that appellant had a criminal record, to the bias and prejudice of appellant." It appears that when the offending answer was made, defendant's counsel interjected: "`Alias' is not in response to the prosecutor's question." Whereupon, the court, on its own motion, ordered that the question and answer be stricken, and instructed the jury "to disregard the last answer made and the last question asked." Apparently defendant did not regard the incident as harmful at the time because no further corrective action than that which the court had already voluntarily taken was asked. In this situation she may not now complain of it.
For similar reasons, the matter complained of in the next assignment is not open to review. It charges error on the part of the court in failing to discharge the jury on account of a statement by the prosecutor (made upon adjournment on the first day of the trial) in explanation of his possible failure to speak to the jurors when passing them in the hall, i. e., "not because I want to snub you, but because I am not allowed to talk to you." Upon defendant's objection that the statement was "entirely out of line," the court agreed, instructed the jury to disregard the remark, and further stated: "I don't mean anything detrimental to Mr. Downs [the prosecutor], but it is just not in order, any more than it would be for Mr. Ponick [one of defendant's attorneys] to make such a remark. The jury is excused." No request for the discharge of the jury was made, nor was any other action on the part of the court requested.
The defendant objected to the following inquiry made by the prosecutor in the course of his closing argument, "Why didn't they [defendant] bring Mrs. Clifford Larson here to testify?" In the first place, we do not place the same interpretation upon the language as defendant ascribes to it in the assignment presently under consideration, to wit, that the prosecutor was erroneously permitted "to state that the burden of proof in a criminal case was upon the appellant." Apart from this, and the fact that, as an isolated bit or fragment of the prosecutor's argument, it stands alone and without disclosure of the connection or context in which used, we are confronted with the record affirmatively showing that the court sustained defendant's objection to it, as requested, and, as in the instances just noticed, this was all that was asked to be done.
The court did overrule an objection made to the prosecutor's reference to one of defendant's counsel as "a lawyer from Kansas City." This is the sum total of the showing made by the record in support of an assignment of error based on this incident. This is insufficient upon its face as a basis for disturbing the judgment. It may be added that certain other matters are urged in this connection, but these must be disregarded because they are extraneous to the record.
There is no substance in the contention that § 560.160, prescribing punishment for grand larceny (as "not exceeding" a certain number of years' imprisonment in the penitentiary, but fixing no minimum), is a special statute, thus controlling over, and rendering inapplicable, the provisions of section 546.490 (that "no person shall in any case be sentenced to imprisonment in the penitentiary for any term less than two years") under defendant's theory that the latter is a general statute. Section 561.370 prescribes that punishment on conviction for a violation of its terms shall be "in the same manner and to the same extent as for feloniously stealing the money, property or thing so obtained." Under section 560.155 the felonious stealing of property "of the value of thirty dollars or more" is declared to be grand larceny, the punishment for which (in cases of the kind at bar) is fixed by section 560.160(2) at "imprisonment in the penitentiary not exceeding five years." Consequently, there was nothing arbitrary or erroneous, as here complained, in having instructed on the permissible range of punishment as "not less than two years, nor more than five years" if the value of the goods be found to be $30 or more. See State v. Woodward, Mo.Sup., 130 S.W.2d 474, 475, and State v. Brawley, Mo.Sup., 242 S.W.2d 564, 565.
We have examined the other portions of the record proper not hereinabove specifically dealt with, and find no reversible error therein. Judgment affirmed.
All concur.