Summary
In State v. Polakoff, 361 Mo. 929, 237 S.W.2d 173, the defendant, Abe Elmer Polakoff, signed a check using the name Mrs. Blanch Watson, but the evidence was that there was no money in the bank belonging to him in his name or in the name of Blanch Watson.
Summary of this case from State v. EugeOpinion
No. 42356.
March 12, 1951.
Defendant's conviction of obtaining money through a bogus check is affirmed. The information was sufficient and there was no variance between the information and the proof. Defendant had notice of an additional witness endorsed during the trial. Defendant's confession was not involuntary, there being a jury issue that defendant was not insane. There was a submissible case. Defendant's own misconduct did not require a new trial. The punishment was not too severe.
1. CRIMINAL LAW: Obtaining Money by Bogus Check: Information Sufficient. The information was sufficient to show that plaintiff cashed a bogus check in his favor drawn by a fictitious maker.
2. CRIMINAL LAW: Obtaining Money by Bogus Check: No Variance. There was no substantial variance between the information and the proof.
3. CRIMINAL LAW: Endorsing Witness During Trial: Prior Notice to Defendant. It was not error to endorse the name of an additional witness on the information during the trial when defendant had prior notice that such witness was to be used.
4. CRIMINAL LAW: Insane Persons: Confession Voluntary: Defendant Not Insane. Defendant's confession was not involuntary as there was a jury issue that defendant was not insane.
5. CRIMINAL LAW: Misconduct of Defendant: New Trial Not Required. Defendant's own misconduct during the trial does not entitle him to a new trial.
6. CRIMINAL LAW: Obtaining Money by Bogus Check: Submissible Case. The evidence was sufficient to sustain defendant's conviction of obtaining money by means of a bogus check.
7. CRIMINAL LAW: Obtaining Money by Bogus Check: Punishment Not Too Severe. The punishment assessed by the jury was not so severe as to indicate passion and prejudice against defendant. It was within the statute and the evidence presented an aggravated case.
Appeal from Circuit Court of City of St. Louis; Hon. Eugene J. Sartorius, Judge.
AFFIRMED.
Walter Dakin Williams for appellant.
(1) The information fails to set forth in particularity the trick or device or false pretense by which the money and/or property was obtained. State v. Pickett, 174 Mo. 663, 74 S.W. 844; State v. McChesney, 90 Mo. 120, 1 S.W. 841; State v. Herman, 162 S.W.2d 873. (2) The information fails to meet the requirements of Section 4694, R.S. 1939 "that the drawer of the check must know that he has no funds in the bank on which the check is drawn" by failing to allege that appellant drew a check on a bank in which he knew he had no funds. Sec. 4694, R.S. 1939; State v. Mullins, 292 Mo. 44, 237 S.W. 502. (3) The information fails to charge every element essential to the offense, does not bring the appellant within all the material words of the statute, and is couched in terms so vague and uncertain that it fails to inform the appellant of the nature and cause of the accusation against him. State v. Barnes, 281 Mo. 514, 220 S.W. 848; Art. 1, Sec. 18, Const. of Mo. 1945; Art. 1, Sec. 10, Const. of Mo. 1945; Amend. 14, Sec. 1, Const. of U.S. (4) A fatal variance between pleading and proof resulted from the introduction of evidence by the state that appellant endorsed the check whereas no endorsement was alleged in the information. Robertson v. Vandalia Trust Co., 228 Mo. App. 1172, 66 S.W.2d 193; State v. McNerney, 118 Mo. App. 60, 94 S.W. 740; State v. Smalley, 252 S.W. 443. (5) The testimony of state's witness, Lloyd Brown, should not have been admitted into evidence because his name was not endorsed on the information. Mo. R.S.A. sec. 3933; State v. Lindsey, 80 S.W.2d 123; State v. Wilson, 223 Mo. 173, 122 S.W. 671. (6) The alleged confession of appellant should have been excluded from evidence on the ground that appellant was mentally incompetent to make a confession and that it was not shown to be voluntary. (7) A mistrial should have been declared by the court as a result of violent and abusive language and irrational outbursts of appellant that prejudiced the court and jury against appellant and necessitated the handcuffing of appellant for the duration of the trial. (8) The demurrer to the state's evidence at the close of state's case and at the close of the entire case should have been sustained. (9) The verdict of the jury was against the weight of the evidence and the punishment prescribed was so severe as to indicate that the jury was necessarily motivated by passion and prejudice against the appellant.
J.E. Taylor, Attorney General, and Thos. F. Gilchrist, Assistant Attorney General, for respondent.
(1) The information is in proper form and follows the language of the Mo. Statute, Section 4694, Rev. Statute, 1939. (2) The court did not err in admitting the evidence of Lloyd Brown, the cashier of the bank upon which the check was drawn, even though his name was not endorsed on the information until the date of trial. State v. Kuebler, 14 S.W.2d 449; State v. Wilson, 223 Mo. 173, 122 S.W. 671. (3) Endorsement of the check by defendant was not essential to the completion of the defendant's crime. Title to the check passed by mere delivery. State v. Clice, 252 S.W. 465; Sec. 3064, R.S. 1939; Bank v. Stam, 186 Mo. App. 439, 171 S.W. 567. (4) The court did not err in admitting in evidence the admissions and confessions made by defendant, they are purely voluntary. State v. Guy, 69 Mo. 430; State v. Schmidt, 136 Mo. 644; State v. Moore, 117 Mo. 395; State v. Vaughan, 152 Mo. 73; State v. Sinovich, 46 S.W.2d l.c. 881, 329 Mo. 909; State v. Johnson, 316 Mo. 86, 289 S.W. 847; State v. McGuire, 39 S.W.2d 523, 327 Mo. 1176; State v. Evans, 133 S.W.2d 389, 345 Mo. 398; State v. Pippin, 209 S.W.2d 132, 357 Mo. 456; State v. Hoskins, 36 S.W.2d 909, 327 Mo. 313. (5) The court did not err in admitting in evidence proof of the sanity of defendant at the time of the alleged crime, even though a Federal Court had adjudged him insane at a later time. 22 C.J.S., pp. 122-120, 32 C.J. 647.
Appellant was convicted in the Circuit Court of the City of St. Louis, Missouri, on a charge of obtaining money, that is, $200, by means of a bogus check. His punishment was fixed at seven years' imprisonment in the penitentiary. He appealed to this court.
Appellant's first contention briefed is that the information is insufficient to meet the requirements of Section 561.450 Mo. R.S., 1949, under which section appellant was prosecuted. Appellant says that the information "fails to set forth in particularity the trick or device or false pretense by which" the money was obtained; that it fails to state that the drawer of the check knew he had no funds in the bank on which the check was drawn; that the information is couched in terms so vague and uncertain "that it fails to inform the appellant of the nature and cause of the accusation against him." We cannot agree with appellant. We have examined the information and have compared the allegations thereof with the State's evidence. The evidence shows that appellant obtained $200 on a check cashed at the Lennox Hotel Company in St. Louis, Missouri, in the exact manner as charged in the information. The essential allegations of the information in substance are that appellant on December 28, 1948, unlawfully, feloniously, fraudulently, knowingly, designedly, and with the intent to cheat and defraud Lennox Hotel Company by means of and by use of a certain check purporting to be drawn by appellant using the name of Mrs. Blanch Watson on a bank in which appellant knew she, Blanch Watson, then and there had no funds; the information then sets forth the name of the bank and the tenor of the check as follows:
"THE FIRST STATE BANK 86-570 1031 Seminole, Okla. December 28- 1948 No. 31 Pay to the Order of William Lee Morgan $200.00 Two Hundred ....................................... Dollars. For Rent collected (signed) Mrs. Blanch Watson Oldest Bank in Seminole County"
The information charges that appellant presented the check to the hotel whose agent believing that appellant using the name of Mrs. Blanch Watson had sufficient [175] funds in the bank to pay the check and relying thereon and being deceived thereby was induced to turn over $200 to appellant. The information further charges that appellant by the means aforesaid with the felonious intent to cheat and defraud well knowing that she, Mrs. Blanch Watson, had no funds in said bank fraudulently and feloniously obtained $200 from the Lennox Hotel Company.
We rule the information definitely and with particularity informed the appellant of the trick and device and false pretense practiced by appellant and by which he obtained the money. Appellant contends that the information charged that the appellant well knew she, meaning Blanch Watson, had no funds in the bank, whereas the information to comply with the statute should have charged that appellant knew that he, the appellant, had no money in the bank. We do not agree. The information alleged that appellant used the name of Blanch Watson as author of the check. The check would not have been honored by the bank on which it was drawn unless there was money in the bank in the name of Blanch Watson. The bank would not have honored the check even if appellant had had sufficient funds in the bank under any other name. However, the evidence was that there was no money in the bank belonging to appellant in the name of Blanch Watson, Abe Elmer Polakoff, or William Lee Morgan. Appellant testified he did not remember all the names he had used. In fact at the time of this trial he insisted his name was Mr. Polly. Cases cited by appellant do not sustain his contention. See State v. Mullins, 292 Mo. 44, 237 S.W. 502; State v. Herman, 162 S.W.2d 873. We must rule against appellant and hold the information sufficient.
Appellant next contends that there was a fatal variance between the information and the proof. It is claimed that the proof showed appellant to have indorsed the check whereas no indorsement was alleged in the information. Not only would that not be a variance, but it was not necessary either to allege or to prove that appellant indorsed the check. It is also asserted that the State proved the indorsement as having been made by a William Lee Magan and not Morgan, the name used by appellant at the hotel. An employee of the Lennox Hotel testified that appellant indorsed the check in his presence. Witnesses were asked about the name indorsed on the check. They seem to have had difficulty in determining whether the name was Magan or Morgan. However, one was positive it was Morgan. Therefore, there is no merit in appellant's point.
Appellant complains because the trial court permitted the State to indorse the name of Lloyd Brown on the information during the trial and to use Brown as a witness. When the objection was made, the prosecutor informed the court that appellant had had notice that this witness was to be used. Appellant did not deny this; therefore, we must defer to the ruling of the trial court. State v. Lindsey, 80 S.W.2d 123, l.c. 126(7-9) (10, 11), cited by appellant rules this point against appellant's contention.
Appellant says his confession should not have been used because he was mentally incompetent to make a confession and that it was not shown to have been made voluntarily. Appellant's defense was insanity. Whether appellant was sane or insane was a question for a jury and the jury decided he was sane. A number of appellant's own witnesses testified he was sane. A Mrs. Anna Herder, a social worker (at the Salvation Army) through whom appellant made arrangements to give a dinner for a number of poor children about the time the check in question was given, testified appellant was "a very normal person."
Dr. Edmond F. Sassin, an expert on mental diseases, was appointed by the court to examine appellant. He testified that in his opinion appellant was sane.
Appellant testified that he had been in numerous mental as well as penal institutions. He introduced a judgment entered by a U.S. District Court in Oklahoma to the effect that appellant was insane. The decree showed that the finding was based on a letter written by a doctor. It is significant [176] that appellant was discharged from so many institutions. His own testimony was that he escaped from one or more. He further testified that he knew what he was doing while on the witness stand. He stated that numerous doctors had examined him and had informed him that he was of an "emotional mentality" and subject to "emotional upsets."
An officer, who took appellant after his arrest from Oklahoma to St. Louis, Missouri, testified that appellant talked about the check while en route to St. Louis and admitted having given the check and that he had no funds in the bank. Dr. Sassin testified that the appellant informed him about the check. Note the doctor's evidence:
"He told me about the check that he had passed, and what he did with the money. He explained that to me. He knew what he was doing at the time. He used the money, he told me, to give a Christmas party for some children."
Compare Dr. Sassin's evidence with that of appellant at the trial when he was asked about parties he had given for children.
"Q. Mr. Polly, did you ever give parties for poor children, do you recall that?
"A. Well, I have given parties for poor children, that I recall. I give a party for about three hundred in Boston, Mass. one time. I recall that, and I can recall giving parties here, as far as parties is concerned, I remember, and I just figured that some of them rich hotels got too much money, and I will give it to the poor, so I give them all a big Christmas dinner, and I felt good over it, and I ain't worrying about it now, * * *."
The evidence disclosed that during appellant's stay at the Lennox Hotel where the check was given, he arranged for two dinners, one for poor children and another for some soldiers who could not get home for Christmas. We must rule that the statements attributed to appellant with reference to the check were voluntarily made.
Appellant during the trial was very abusive toward the court officials and the attorneys, his own as well as the State's. In his motion for new trial he asks to be given another trial because such conduct on his part prejudiced the jury. To grant appellant a new trial on this ground would be to place a premium on his own misconduct. The request is denied.
Appellant says the demurrer to the evidence should have been sustained. To this we cannot agree. In addition to what has been stated the evidence disclosed that appellant registered at the Hotel Lennox under the name of William Lee Morgan a day or two before Christmas in 1948; that he deposited several hundred dollars with the hotel; that he had dinner on two occasions with Paul Lampe, Assistant Manager of the hotel. It was while appellant was having dinner with Lampe that he presented the check, indorsed it, and informed Lampe that the check represented rents collected. Appellant while staying at the hotel as above-mentioned gave two dinners, one for poor children and one for soldiers. A day or so after he obtained the $200 on the check, appellant withdrew the cash balance in his account at the hotel and checked out. The State's evidence justifies a finding that appellant gained the confidence of the assistant manager of the hotel, leading him to believe he was a man of means, and in that way misled Lampe and induced him to cash the check. The evidence also supports a finding that appellant used the name of Blanch Watson as the author of the check knowing at the time there was no money in the bank in such name. We rule the evidence sufficient.
Appellant says that the punishment assessed by the jury was so severe as to indicate passion and prejudice against appellant. The punishment is within the statute. The evidence showed this to have been an aggravated case. Appellant admitted having been previously convicted of a number of offenses. Concerning his convictions of crime, he testified as follows: "So, I have been convicted quite a few times. But every prison I was in, if they want to prove it, I have been in the psychology branch the biggest part of the time, in ever prison I have been in."
We cannot say that the punishment assessed disclosed prejudice against [177] appellant. If later it develops that appellant while in prison is in need of medical treatment because of his "emotional upsets" such treatment will no doubt be administered.
The judgment is affirmed. Bohling and Barrett, CC., concur.
The foregoing opinion by WESTHUES, C., is adopted as the opinion of the court. Tipton, J., and Ellison, P.J., concur; Leedy, J., dissents.