The defendants Amanda Samis and Robert E. Samis, and Emma Tranin and Samuel T. Tranin, were charged jointly by information filed in the Criminal Court of Jackson County, with obtaining property by false pretenses, in violation of Section 3343, Revised Statutes 1919. The property described was a check for five thousand dollars, signed by one Esther Harvey, which check was alleged to be of the value of live thousand dollars and the property of the said Esther Harvey.
The Tranins obtained a severance and a continuance. Amanda and Robert E. Samis went to trial before a jury, and on the twenty-sixth day of June, 1920, were found guilty as charged in the information, and the punishment of each assessed at four years' imprisonment in the penitentiary. They appealed in due form.
The evidence shows that for about two years Mrs. Tranin was engaged in extracting money from numerous people in Kansas City for the purpose of alleged investments. She claimed that she was making investments for certain persons in St. Louis engaged in the junk business who made millions out of war contracts. She also said she represented what she called the Travises and Livingstons, owners of large refineries in Tulsa, Oklahoma. She claimed also to be dealing in platinum. She represented that her clients were multimillionaires and that the investments in which she induced her victims to place their money would yield enormous profits, dividends ranging from twenty-five to one hundred per cent. Many persons were led to invest money in these supposed enterprises. Mrs. Tranin's bank account was introduced in evidence *Page 478 showing large and frequent deposits covering a long period.
The defendant, Mrs. Samis, early became associated with her in these enterprises, and the record shows many checks and notes affecting transactions with various persons, where money was borrowed by her, sometimes paid back with usurious interest, a profit of from fifty to seventy-five per cent, and frequently borrowed again for re-investment. In many instances notes were renewed at from fifty to one hundred per cent more than the original notes. This represented the profits which the various lenders were receiving from the supposed investments. The evidence indicates that no real investments were made of any of this money.
On the eleventh day of March, 1919, while these business transactions were in full operation, Mrs. Esther Harvey signed a check for five thousand dollars on the Western Exchange Bank of Kansas City, payable to Mrs. R.E. Samis. It was endorsed on the back by Mrs. Esther Harvey and R.E. Samis and cashed by Mrs. Samis. The way this check was obtained is described by Mrs. Harvey. She was engaged in the paint-and-glass business in Kansas City. In March, 1919, Mrs. Samis came to her place of business and told her that "they" (evidently meaning herself and Mrs. Tranin) were getting up a fifty-thousand-dollar investment with the Livingstons and Travises, and she wanted Mrs. Harvey to have five thousand dollars of it. Afterwards Mrs. Tranin and Mrs. Samis came back together and talked to Mrs. Harvey for two hours. They told Mrs. Harvey that she was amply secured, that they had oil securities in the bank, and that the books were in the bank all figured out, and that there was no chance for her to lose. Mrs. Samis told her that it would pay at least one hundred per cent; that they had all kinds of money coming in, "and if I wanted it back in a month I could get it and it would be a permanent investment and there would be nobody in it but the Samises, Tranins and myself afterwards." Both *Page 479 Mrs. Samis and Mrs. Tranin said the Travises and the Livingstons had securities in the Gate City Bank covering the loans, and had securities back of the fifty-thousand-dollar loan they were negotiating. Mrs. Samis told her that she was familiar with the Livingstons and had been to Mrs. Travis's home on Troost Avenue. These representations were repeated several times in different forms, according to Mrs. Harvey.
Mrs. Samis testified that she paid the money, the proceeds of the check, over to Mrs. Harvey, but Mrs. Harvey denied that she ever received the money; she said that the entire five thousand dollars was lost to her; that Mrs. Samis afterwards told her that she gave the money to a Mrs. Gilchrist in the Vogue Shop in the Muehlebach Hotel.
It was further shown that Mrs. Harvey induced a number of her friends to loan money to Mrs. Tranin and Mrs. Samis, in many of which instances she went on their notes and afterwards paid the people who thus had loaned the money. Mrs. Harvey loaned other money at other times to Mrs. Samis and Mrs. Tranin, and afterwards received notes for fifty per cent and sometimes seventy-five per cent in addition to the amounts loaned.
There was an attempt on the part of the defendants to show that the enterprise was peculiarly that of Mrs. Tranin; that Mrs. Samis herself was one of the victims and lost money in the enterprise. Mrs. Harvey testified that in giving her check she replied upon Mrs. Samis's word; she knew Mrs. Tranin only through Mrs. Samis, and that, with two exceptions, Mrs. Samis was with Mrs. Tranin every time Mrs. Tranin came to see her.
The testimony as to the actual facts about the alleged investments "and securities" is very meagre. The witnesses mentioned when the "crash" came, though it is not explained what happened at that time. It is asserted by the appellant that no evidence shows any of the statements relating to the securities, were untrue, or that the enterprises in which the people were investing their *Page 480 money were not as represented. In the opinion we will refer to such facts as relate to that matter. It is also claimed that the defendant. R.E. Samis had nothing to do with the transaction involving the obtaining of Mrs. IIarvey's money. The facts relating to that will also be noted in the opinion. On the evidence as introduced both of the defendants were found guilty as stated.
I. Appellant attacks the information as being insufficient to support the conviction. The information sets forth that on the eleventh day of March, 1919, Emma Tranin, Samuel T. Tranin, Amanda H. Samis and R.E. Samis feloniously and designedly, with intent to cheat and defraud one Esther Harvey, didInformation. represent, pretend and say to said Esther Harvey that the Travis and Livingston families were then and there multimillionaire dealers, and owned and operated large oil refineries in the city of Tulsa, in the State of Oklahoma, and did then and there apply to and request that they the said Emma Tranin and Samuel T. Tranin, and Amanda H. Samis and R.E. Samis negotiate and raise a loan for them in the sum of fifty thousand dollars; that the said Tranins and Samises, with such felonious design, etc., pretended, represented and said to the said Esther Harvey that the said Livingstons had placed in their possession securities of said oil refineries to secure a loan of fifty thousand dollars, which the said Travises and Livingstons had requested the said Tranins and Samises to negotiate for them; that the Tranins and Samises further represented that they were familiar with the said securities of the oil refinery, as aforesaid, paying one hundred per cent upon the money invested; that the said Esther Harvey, believing the false statements and pretenses so made, and relying upon and being deceived thereby, was induced by reason thereof to pay, and did pay and deliver to the said Emma Tranin, Samuel Tranin, Amanda Samis and R.E. Samis a check for the amount of five thousand dollars for the purpose of it *Page 481 being invested. The check is then set out in the information. It is then alleged that the said Tranins and Samises, by means of the fraudulent statements and pretenses as aforesaid, obtained from the said Esther Harvey a five-thousand-dollar check of the value of five thousand dollars, the personal property of the said Esther Harvey.
The falsity of the pretenses is averred in that in truth and in fact the Travises and Livingstons had not made any arrangement with the said parties to raise a loan of fifty thousand dollars; that the Tranins and Samises were not familiar with the securities and their value; that the Travises and Livingstons had not placed securities in their possession to cover the said loan, nor any amount whatever, and in truth and in fact said securities were not paying one hundred per cent on the money invested in them. That all the statements made by the Tranins and Samises to the said Esther Harvey were false and fraudulent, which they all then and there well and truly knew.
This information contains the language of the statute, Section 3343, and is in the form frequently approved by this court. [State v. Martin, 226 Mo. 538, l.c. 548; State v. Gerhart,248 Mo. 535; State v. Donaldson, 243 Mo. 460, l.c. 473; State v. Shout, 263 Mo. 360, l.c. 367-8.]
Appellant claims that the information is defective because it fails to allege that the defendants requested Mrs. Esther Harvey to contribute a five-thousand-dollar check to the loan. Such specific averment is not necessary, as shown by the cases cited; it is alleged that with the design to cheat and defraud the said Esther Harvey they represented the securities to be good, and that they were negotiating a loan, and that she was induced by said false statements to deliver to them her check for five thousand dollars. It was that moving cause which induced the victim to part with her money, and constitutes the false pretense.
Other objections made to the form of the information *Page 482 are without merit. The fact that the defendants represented that they could do something which legally they could not do; that their statements showed on their face they were powerless to enter for their supposed principals the contract, does not affect the criminal act. The making of the false representations, the delivery of the check in reliance upon them, the ownership of the property obtained and its value, the intent of the perpetrators of the fraud, the knowledge that the representations were false — all elements of the crime — appear in the information.
II. It is argued that a case was not made out against Mrs. Samis because it was not shown in fact that theSufficient representations, which induced Mrs. Harvey to partEvidence. with her money were false.
There was nothing to show that there were such persons as the Livingstons or Travises, or that the Tranins represented anybody whatsoever in the junk business in Saint Louis, or that they had any interest in any platinum enterprise, or that they represented anybody in the oil business or any other business.
This entire absence of any showing of the truth of representations leaves the case in a condition such that slight direct evidence of the fraudulent character of statements is sufficient to sustain the verdict.
In several places in the evidence the "crash" is mentioned. It is shown all through that none of the loans were of any value. The profits which some of the lenders received were the losses of other victims. There is evidence tending to show that no money received by the Tranins or Mrs. Samis ever was invested anywhere. It was deposited to the credit of Mrs. Tranin or Mrs. Samis; some of it was used by them for their own personal purposes, and some of it repaid to lenders. There were great losses on the part of a great many people, including Mrs. Harvey. *Page 483
On one occasion there was a tea party where many of the persons interested were present. This party, in the minds of the witnesses, seems to be associated with the time of the "crash." What developments occurred to constitute the "crash" is not clearly stated by any witness, but it evidently meant the complete exposure of the fraudulent scheme in which the defendants were engaged. A Mrs. Patrick, one of the victims of the scheme, testified to representations made to her by Mrs. Tranin very similar in character to those made to Mrs. Harvey about the multimillionaire junk dealer in Saint Louis, the corner in platinum, and the oil refining stock. She then testified that on the day of the tea party she approached Mrs. Tranin and extended her hand and Mrs. Tranin exclaimed, "Stay away from me, don't come near me, I'm a thief. I stole your money; there never was any investment." This was said in the presence of Mrs. Samis. The remarks evidently referred to the joint enterprises in which Mrs. Samis and Mrs. Tranin were engaged. Mrs. Samis made no denial of this statement about the non-existence of the alleged securities. The witness at the same time asked Mrs. Tranin: "What did you do with the $2500 I gave you Saturday?" Mrs. Tranin replied, "I gave it to Mrs. Samis." Mrs. Samis denied that she got it. All of that took place in the same conversation. The fact that Mrs. Samis singled out the one statement of Mrs. Tranin for denial, without denying the other, is evidence of the falsity of the representations that the Livingstons and the Travises put securities in the hands of Mrs. Tranin. Mrs. Samis stated to more than one witness that she had made a great deal of money out of the business, and had bought a great many things for her daughter and her sister back east; that she had some property and a store on Grand Avenue, and had made three thousand dollars for her husband to start in business. This evidence, together with her association for a long time in the business with Mrs. Tranin, is sufficient to justify *Page 484 the conclusions that the representations as to the character of the investments which she so induced people to make were false, that she knew them to be false, and that she profited by them. The jury might properly infer that in making money out of the deals she knew how it was made, and knew it did not come from investments with any multimillionaires whom she and Mrs. Tranin claimed to represent.
The demurrer to the evidence was properly overruled as to Mrs. Amanda Samis.
III. The evidence by which it was attempted to connect R.E. Samis with the transactions is about as follows:
Mrs. Harvey testified that on one occasion she drove with Mrs. Samis to see some of the people from whom they were getting money, and Mrs. Samis decided that she wanted to get three hundred dollars from Bob (Mr. Samis) that day, andInsufficient Mr. Samis made out a check to Mrs. Harvey. At theEvidence. time of making the check, Samis, who was investing in weed chains for automobiles, said he could not afford to give this money, that he had his bills to pay. Mrs. Samis told him not to worry, that she would have plenty of money to buy chains.
On another occasion when Mrs. Harvey was driving past Mrs. Samis's store she went in. Mr. Samis was there alone, and she told him about a certain check coming back which had been given her by Mrs. Samis. Samis laughed and told her he knew all about it. She asked him, "Do you suppose we will lose our money?" He answered: "Oh, no, she has a lot of rich investors back of her." He told Mrs. Harvey that she would be surprised if she knew the money he was making out of some money he had out at the present time. At another time Mrs. Harvey asked Samis about the transactions in which they were engaged and asked him if he thought they were all right, and he stated that he had eight thousand *Page 485 dollars invested in it and got it all out. On one occasion at the Samis home he got out his bank book and showed his deposits for the week, one of which was eight hundred dollars. It seems all this occurred after Mrs. Harvey gave her check to Mrs. Samis. The evidence further showed, and Samis admitted, that he had paid five hundred dollars for attorneys to defend this case, and that he had offered five hundred dollars to someone to stop the prosecution. The State's attorney called it compounding a felony.
This was all the evidence to connect Robert E. Samis with the transactions. He conducted an automobile supply business with which Mrs. Samis had nothing to do. Mrs. Samis said she concealed from him the nature of her investments, apparently because she thought he would not approve of them. The evidence shows Mrs. Tranin was extremely cautious. She didn't want anybody to know about the transaction in which she engaged excepting the particular persons she dealt with. She didn't want her name to appear on checks and other papers where it might attract attention. A great deal of business was conducted on the sly. There is nothing to show that Robert Samis participated in the profits of the deals, or that he was a member of the conspiracy, or that he knew anything about the Harvey transaction. The State failed to make out a case against him such as would warrant the submission of the evidence to the jury. [State v. Singleton,243 S.W. 147.]
IV. The appellant complains of the giving of certain instructions. It seems that objections were madeInstructions. upon a misconception of what the instructions state. The appellant also complains of the refusal of certain instructions offered by him. Such instructions are fully covered by others given.
V. Complaint is made of improper remarks made by the prosecuting attorney in the conduct of the case. *Page 486 In the motion for new trial this matter is not assignedImproper as error and therefore is not before the court forRemarks. review.
VI. A great deal of evidence was offered to show other transactions of the Samises and Tranins whereby a great many people were induced to invest in the enterprise in which the defendants were engaged. The proof of the otherOther crimes showed a course of conduct and dealings onTransactions. the part of the defendants. The evidence of other fraudulent deals was admissible to show the intent with which the deal complained of was undertaken. [State v. Patterson, 271 Mo. l.c. 110; State v. Peck, No. 23704, decided at the present term of this Court and not yet reported, and cases therein cited.]
VII. Certain admissions by Mrs. Tranin at the so called tea party were produced in evidence, and this is claimed to be error. As we have seen, some of these statements were made in the presence of Mrs. Samis and not denied by her. Further, the proof of the conspiracy is sufficient to warrant aAdmissions by finding that it existed between the defendants.Co-conspirator. The long course of dealing in which Mrs. Tranin and Mrs. Samis were engaged together, with the joint deals on which they obtained money from other people, tends to show that by concert of action they had engaged in that fraudulent scheme together. A conspiracy may be shown by circumstances. [State v. Kolafa, 291 Mo. 340, 236 S.W. 302, l.c. 304, 305, and cases cited.] The statement of one conspirator made during its continuance is admissible against the others. [State v. Darling, 199 Mo. l.c. 201; State v. Fields, 234 Mo. l.c. 623; State v. Bersch, 276 Mo. l.c. 414; State v. Bobbitt, 228 Mo. l.c. 257; State v. Roberts, 201 Mo. l.c. 727-728.]
VIII. It is contended that the trial court erred in *Page 487 qualifying a juror. One juror who stated that he had formed and expressed an opinion in relation to the guilt orJurors. innocence of the defendants said that it would require evidence to remove the impression which he had received. On being questioned by the defendant he made this statement: "Unless the evidence is so clear as to break down the opinion you now have, the opinion you now have would enter into your consideration in arriving at your verdict? A. It most certainly would." In answer to other questions the juror further said:
"Q. I want to know whether you are going to follow the evidence on the witness stand or be governed by your opinion? A. Yes, I would follow the evidence.
"Q. You said you would try the case based solely on the testimony given by the witnesses on the stand? "A. Yes sir.
"Q. And you would be guided by that and that alone? A. Yes sir."
Under the frequent ruling of this Court the juror was qualified. [State v. Herring, 268 Mo. 514, l.c. 529, and cases cited.]
The judgment is affirmed as to the defendant Amanda H. Samis, and reversed as to Robert E. Samis, who is discharged. Railey,C., concurs; Reeves, C., absent.