State v. Inscore , 1980 Mo. LEXIS 412 ( 1980 )

HIGGINS, Judge.

Appeal from judgment on conviction by a jury of perpetrating a confidence game in violation of § 561.450 RSMo 1969, transferred from the Court of Appeals, Eastern District, after divided opinion on whether the State made a case and whether the court erred in connection with the State’s argument. Affirmed.

On January 27, 1976, Inscore went to a feed store, operated by Donald Elsberry in Vandalia, Missouri, and said he wanted to buy animal health supplies. After listing what he wanted, the supplies were loaded on his truck. Elsberry made out the sales ticket showing purchases of $465. Inscore then asked if he could have thirty days credit; Elsberry agreed on the condition that Inscore sign the ticket, which he did. After thirty days, Elsberry sent Inscore a statement. The bill was never paid despite repeated requests for payment.

To convict under § 561.450, the State must charge and prove: (1) defendant obtained goods from another person; (2) by means of false or fraudulent representation; (3) with the intent to cheat and defraud.

Appellant claims the information failed to charge an offense under § 561.450. The information alleged: that on January 27, 1976, Inscore obtained animal health products valued at $465 from Donald Els-berry by means of false and fraudulent representation with the intent to cheat and defraud him. The information alleges the elements required under the statute in the language of the statute, and is thus sufficient. State v. Tandy, 401 S.W.2d 409 (Mo.1966).

Appellant contends the evidence was not sufficient to prove the elements of the crime. There is no dispute that defendant obtained the goods from Mr. Elsberry; that in asking for and obtaining thirty days credit and signing the bill he represented that he would pay the amount due within thirty days; and that he did not, as represented, pay his bill within thirty days. At issue in appellant’s contention, therefore, is the sufficiency of proof of the intent to cheat and defraud. Such proof is necessary for criminal sanction; failing its introduction, defendant is guilty of no more than breach of contract.

Before a jury is permitted to find a verdict of guilty where fraudulent intent is an element of the crime, there must be in connection with the act done, attending circumstances which bespeak fraud — a situation where common experience finds a reliable correlation between the act and a corresponding intent. State v. Basham, 568 S.W.2d 518 (Mo. banc 1978). The State must show that the intent to cheat and defraud existed as of the time the pretense was made. State v. McWilliams, 331 S.W.2d 610 (Mo.1960).

The subjective intent of the defendant at the time he made his promise is rarely open to direct proof. The mens rea, therefore, may be proved by means of circumstantial evidence. State v. Schmidt, 530 S.W.2d 424 (Mo.App.1975). In particular, to prove intent to defraud based upon a promise, the State may introduce evidence of similar incidents whereby the defendant obtained money from other victims by making some sort of promise. The theory which underlies admission of such evidence is that if a defendant consistently makes the same promise to a number of victims and, after obtaining the victim’s money or goods, consistently fails to perform, it may be fairly inferred from the pattern of behavior that no mischance could reasonably explain all the failures of performance. Thus, the inference is raised that the defendant must have intended not to perform in any instance and particularly in the situation in which he has been charged. State v. Basham, 571 S.W.2d 130 (Mo.App.1978). Evidence at trial of the numerous similar transactions whereby appellant obtained feed products upon a promise to pay later then failed to do so was sufficient to establish the inference of intent to defraud in the Vandalia feed store transaction.

The following is a resume of the “similar incidents”:

On September 11,1975, Inscore purchased pig grower, protein blocks, and precondi-tioner worth $236.45 from Mexico Food and Seed Supply. Upon the representation he would pay in thirty days, he was extended credit; he signed the bill and departed with the merchandise. Despite repeated monthly statements and phone calls, the bill was not paid.

On January 13, 1976, Inscore purchased 300 pounds of hog medication worth $480 from the MFA Exchange in Perry, Missouri. When asked for payment, he took out his checkbook, said he had run out of checks and asked for credit. This was extended upon his promise he would send a check within thirty days. Payment was never received.

On January 27, 1976, the transaction in question took place.

In early February, 1976, Inscore offered to purchase the entire stock of ASP — 250, a hog medication, at Producer’s Grain Company in Montgomery City. When the assistant manager refused to extend credit, Ins-core said, “If you don’t want to charge it, I will give you a damned check.” On his way into the company’s office, he said, “I’m in a big hurry today and haven’t much time” and did not make the purchase.

On February 18, 1976, Inscore purchased 200 pounds of CSP-250 from Producers Grain Company in Montgomery City, Missouri. In the usual pattern, he promised to pay within thirty days, signed the bill, took the goods on credit, and never paid for them.

On the same day, Inscore agreed to purchase 200 pounds of the same additive from Wilt Farm Center in Shelbina, Missouri. He was granted credit for the $287.40 bill when he claimed that he traveled through Shelbina frequently and would make payment on a later visit. The bill was never paid.

Sometime during the Spring of 1976, Ins-core went to Schlemmer Farm Supply in Laddonia looking to purchase all the feed supplements in stock. When the owner refused to extend credit, Inscore said he would return and pay by check because he had forgotten his checkbook. He never returned.

On June 24, 1976, Inscore engaged in three separate transactions. The first ended with ten days credit on a purchase of two tons of cattlefeed and 50 pounds of minerals from Black Feed and Produce in Mexico, Missouri. The second involved ten days credit for 500 pounds of ASP-250 worth $675 at a farm supply company in Hawk Point. The third found Inscore receiving ten days credit on the $360.99 purchase of all the Tylan in stock at a Bowling Green, Missouri feed store. In each instance, he promised future payment, signed the bill, and took the goods. In no instance did he ever pay the bill.

On July 26, 1976, Inscore agreed to purchase 50 pounds of ASP-250 and 100 pounds of CSP-50 from the MFA Exchange in Freeburg. Granted credit by the manager, Inscore signed the bill for $232.06 and departed with the goods. Two weeks later he came back for more but was refused credit. The first bill was never paid.

On September 2, 1976, Inscore purchased 100 pounds of ASP-250 and 100 pounds of Tylan-10 from Yeuleman’s Elevator at Se-daba, Missouri. He took the goods on ten days credit and never paid for them.

On September 20, 1976, Inscore attempted to purchase 300-400 pounds of Furox-50 from the MFA Exchange at Boonville. The manager told him he would have to check to see if FDA regulations allowed such a sale. He also gave Inscore a credit application to fill out before he would approve the purchase. When the manager returned from a phone call, Inscore was gone.

On September 30, 1976, Inscore asked to purchase 50 pounds of Tylan — 10 from the Monroe County Service Company in Paris, Missouri. He told the salesman he had forgotten his checkbook and asked if he could send a check. Credit was extended and the bill was never paid.

Sometime in September, 1976, Inscore approached the manager of the MFA Exchange in New Florence, Missouri for a credit purchase of seed. When the manager said he required approval from his main office for a credit purchase, Inscore left and never returned.

The transactions similar to the one for which defendant was tried and convicted involved many hundreds of pounds of livestock feed additives. These additives are added in small proportion to livestock feed. Based upon the quantity purchased within one year’s time and the small proportion in which they are added to feed, for Inscore to have used the products himself would have required a huge herd of animals. The evidence showed that he owned no livestock at all.

The record contains sufficient evidence to support defendant’s intent to defraud the Vandalia Feed Store at the time of his purchase and also supports, therefore, his guilt of the perpetration of a confidence scheme in violation of § 561.450 RSMo.

Appellant charges that the prosecutor impermissibly commented on defendant’s right to silence by the following:

“He said there is no evidence the Defendant is not going to pay. Well, there is no evidence at all. We have got no evidence. The Defendant is in debt. We don’t know how much money he has. I will tell you this. Carl Sapp, the Defendant’s attorney, is a good'attorney; he is an excellent attorney; he is one of the best. He was trying cases probably before I was born and if there had been any evidence he could have produced as any defense in this case you had better believe he would have produced it.”

The question is whether this argument violated defendant’s rights under the Fifth Amendment to the Constitution of the United States and practically identical Art. I § 19 of the Missouri Constitution that no person “. . . shall be compelled in any criminal case to be a witness against himself . . . ”; or if the questioned comments violated § 546.270, RSMo 1969 and the corresponding identical provision of Rule 26.08:

If the accused shall not avail himself or herself of his or her right to testify, or of the testimony of the wife or husband, on the trial in the case, it shall not be construed to affect the innocence or guilt of the accused, nor shall the same raise any presumption of guilt, nor be referred to by any attorney in the case, nor be considered by the court or jury before whom the trial takes place.

State v. Hutchinson, 458 S.W.2d 553 (Mo. banc 1970), held that only direct and certain references to the failure of the accused to testify were proscribed and allowed a prosecutor’s comments that defendant could have called “any witnesses he wanted to,” that he was “free to offer any evidence he had,” and that defendant had offered no evidence.

Examination of the comment in the instant case results in the same conclusion. In the first place, it was not a reference to the accused’s failure to testify as prohibited by § 546.270 and Rule 26.08, but to counsel’s failure to put on evidence. Second, it was an assertion that no evidence had been offered by the defense, a statement upheld in State v. Hutchinson, supra, thus rebutting appellant’s constitutional challenge.

Appellant charges error in the trial court’s exclusion of his wife’s testimony as a sanction for noncompliance with Rule 25.-34 in failing to disclose her as a defense witness. The rule provides:

. the defendant shall disclose to counsel for the state such part or all of the following material or information within his possession or control designated in such request:

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(2) The names and last known addresses of persons, other than defendant, who defendant intends to call as witnesses at any hearing or at the trial,

Appellant concedes that the State made written request for disclosure of his witnesses and that his wife’s name was not disclosed. He argues he was not required to disclose his wife as a possible witness as she could have asserted marital privilege and could not have been compelled to testify-

Rule 25.34 excludes only the defendant from its mandate. Sanctions permitted at the discretion of the trial court for failure to comply include the exclusion of evidence. Rule 25.45. It was thus not an abuse of discretion. State v. Ellis, 567 S.W.2d 454 (Mo.App.1978).

Judgment affirmed.

DONNELLY, RENDLEN and MORGAN, JJ., and HENLEY, Senior Judge, concur. BARDGETT, C. J., dissents in separate dissenting opinion filed. SEILER, J., dissents and concurs in separate dissenting opinion of BARDGETT, C. J. WELLIVER, J., not sitting.