State v. Gregory

GANTT, J.

This is a prosecution under section 4226, Revised Statutes 1899, which is in these words-:

"Sec. 4226. Any contractor or subcontractor who shall purchase materials on credit, and represent at the time of purchase that the same are to be used in a designated building or other improvement, and shall thereafter use, or cause to be used, the said material's in the construction of any building or improvement other than that designated, without the written consent of' the person from whom the materials were purchased, with intent to defraud such person, shall be deemed guilty of a misdemeanor, and, on conviction, shall be punished by fine not exceeding five hundred dollars.”

Although the offense is made a misdemeanor only, jurisdiction of this appeal is conferred on this court because the constitutionality of said section was duly challenged by the motion to quash the indictment, and the' criminal court having overruled the same; an exception- was duly saved and the motion and exception incorporated in the bill of exceptions.

*603 The indictment was returned at the January term, 1900, and the defendant was tried and convicted on the 18th of February, 1901. The record was filed in the Kansas City Court of Appeals, September 14, 1901, and by that court transferred to this court and lodged in the cleric’s office too late to be heard at the April term of this year.

The indictment in substance charges that defendant Gregory on the 20th day of March, 1899, was then and there, in Jackson county, a contractor, and then and there had a contract with one Lewis M. Rowland, the owner of certain premises known as No. 4030 East Seventh street in Kansas City, .Jackson county, Missouri, to furnish materials and to do work on the construction of a building at said number and did then and there purchase materials, to-wit, 200 bunches of W. P. laths, of the value of $25; 10 pieces of 2x10-12 No. 1 Y. P. of the value of $3.40, and 5 pieces 1x12-16 2 W. P. of the value of $1.68, on credit, from the Current River Lumber Company, a corporation, and did then and there unlawfully, falsely and fraudulently represent to the said Current River Lumber Company, at the time of said purchase,, that the said materials were to be used in the said building at No. 4030 East Seventh street and thereafter he the said Gregory did unlawfully and fraudulently use and cause to be used the said materials in the construction of a building and improvement other than the designated building at No. 4030 East Seventh street, without having first obtained the written consent of the said Current River Lumber Company from whom said materials were purchased, to so use the said materials on such other buildings with the intent to defraud the said lumber company of said materials, against the peace and dignity of the State.

There was evidence tending to prove the charges in the indictment sufficient to require the case to be submitted to the jury.

Various errors are specified and we proceed to dispose of them. ’ ’ .

*604 I. The chief point is that the act is unconstitutional because it is class legislation and denies the defendant the equal protection of the laws and imposes upon a building contractor penalties not imposed upon other persons in like situations. That laws which give mechanics, contractors, and materialmen liens on the buildings upon which they work and for the construction of which they furnish materials, are constitutional, has been decided in a great many well-reasoned cases. It was so held at an early day in this State. [Dubois’ Admr. v. Wilson’s Trustee, 21 Mo. 214 . See also Kellogg v. Howes, 81 Cal. 170 ; Hart v. Railroad, 121 Mass. 510 ; Shaw v. Bradley, 59 Mich. 204 ; Glacius v. Black, 67 N. Y. 563 ; Cole Mfg. Co. v. Falls, 90 Tenn. 466 ; Purtell v. Bolt Co., 74 Wisc. 132.]

Such laws have been held not to deprive persons •of their property without due process of law and are not class legislation. [Quale v. Moon, 48 Cal. 478 ; Summerlin v. Thompson, 31 Fla. 369 ; Warren v. Sohn, 112 Ind. 213 ; Va. Devel. Co. v. Crozier Iron Co., 90 Va. 126 .]

Our statute which gave the defendant a lien as a contractor on the buildings for which he ostensibly purchased the laths and other lumber from the Current River Company is not unconstitutional because it singled out contractors and materialmen as a class, because all persons “who are, or who may come into like situations and circumstances” are treated alike by its provisions. [Humes v. Railroad, 82 Mo. 221 ; Ibid v. Ibid, 115 U. S. 512 .] But while our laws give the materialmen liens for the materials furnished for the erection of a building or improvement, the lien is not allowed for materials furnished to the contractor to go into a building but not put into it by him. [Deardorff v. Everhartt, 74 Mo. 37 ; Henry & Coatsworth Co. v. Evans, 97 Mo. 52 ; Schulenberg v. Home Institute, 65 Mo. 295 ; Simmons, Garth & Co. v. Carrier, 60 Mo. 582 ; Fitzpatrick v. Thomas, 61 Mo. 516 .]

When the Legislature came to consider, then, that the materialman, relying upon the mechanic’s lien law, *605 would furnish Ms material to a contractor upon the faith of the lien guaranteed Mm, hut that he had no' protection by that law if the contractor should fraudulently order the material and have it delivered at the designated building and then remove the whole or part of it to another building without the knowledge or consent of the materialman, the opportunity for fraud was greatly enhanced and the materialman became liable to be cheated out of his materials by contractors to whom he had sold upon' the faith of the lien he was to have on the building or improvement. To buy lumber for one building, have it delivered at the place and then without' the knowledge or consent of the lumberman who furnished it for that specific purpose,, cart it off and put it into another building on wMch he would have no lien, is a palpable fraud on its face' and it was and is entirely within the power of the Legislature to make all proper laws and regulations to prevent such frauds, the facilities for perpetrating wMch have been increased by the. very laws enacted for the protection alike of the contractor and material-man. [State v. Addington, 77 Mo. 118 .]

The Legislature having given a special lien te contractors, and experience having taught that under the guise of that law frauds upon materialmen were being perpetrated, it was entirely competent to make such frauds misdemeanors in order to prevent them in the future. By its terms it refers to all contractors and all subcontractors and, hence, does not split up a natural class. The cases of State v. Loomis, 115 Mo. 307 , and State v. Julow, 129 Mo. 163 , have no pertin-ency, for the reason that they are based upon statutes which made unnatural and unjust classification and split up natural classes. We have no doubt whatever of the constitutionality of the act under wMch defendant was indicted and convicted.

The argument advanced that when he ordered the laths they became his property and he could do as he pleased with.them, and to deny him this right would be to discriminate against him as a property-owner,. *606 is based upon a false premise. Tbey did not become' Ms absolute property. He bad only a special property in them" and was bound to use them in tbe building for wMcb be ordered them. It was upon tbe credit of tbe building tbey were sold and credit extended to bim. Every presumption must be and will be indulged in favor of tbe act. [State v. Whitaker, 160 Mo. 59 ; Ewing v. Hoblitzelle, 85 Mo. 64 .]

IL It is next urged tbat defendant was denied tbe right to testify as to bis intent with which be moved tbe material from tbe bouses for which he ordered it.. He was asked by his counsel if he had any intention of stealing any of the material or defrauding anybody in the transaction and he answered, “No, sir, I had none at all.” He testified that of the 20,000 laths Ordered for Rowland’s two houses, only eleven thousand went into them and he gave Mr. Rowland a certificate to that effect, to enable him to settle with the lumber company. He nowhere offered to prove that he had the written consent of the lumber company to remove and use the laths in a different building. While he was permitted- to testify tbat be had no intent to steal or defraud, his own testimony established a violation of the statute, to-wit, an intent to do the specific thing which the statute forbids. [State v. Silva, 130 Mo. 440 ; State v. Johns, 124 Mo. 379 ; State v. Adams, 108 Mo. 214 ; State v. Musick, 101 Mo. 271 .] The defendant -was not prejudiced by the ruling on this point. The pretense that 9,000 laths were a mere remnant left over, which according to custom the contractor may remove to another building, is utterly without merit.

III. As to the failure to instruct on the presumption of innocence, it is sufficient to say the court instructed the jury that they must acquit unless they •' found defendant guilty beyond a reasonable doubt, and defendant neither prayed the court to instruct upon all questions of law, nor saved any exceptions to its.; failure to do so, and consequently the. point is not-before us.

*607 The instructions covered the case and were unobjectionable. It was not error to fail to define the simple words “falsely” and “fraudulently.” These are plain words and an attempt to define and simplify them would only confuse. [State v. Sattley, 131 Mo. 491 .]

Another assignment is that the court improperly admitted evidence that defendant had a system of buying or ordering materials largely in excess of the amount needed to complete his contracts and then removing the excess. Three witnesses were called to prove this. As to two of them, Jordan and Hocken-smith, no exception whatever yas saved to their evidence, and while the court did admit Poppart’s evidence over objection, he promptly ruled ont the whole of the evidence of the three, stating that it did not show any such systematic fraud as justified it. Evidence showing that one criminal act was but a part of a system or series of criminal operations ■ and of thus proving the guilty and common intent, is sometimes competent, but we agree with the learned trial court that the evidence offered was too inconclusive to establish a common purpose in this case and he properly excluded it from the jury. We are of the opinion that the admission of Poppart’s evidence and its prompt withdrawal did not seriously prejudice defendant’s ease.

The evidence abundantly sustained the indictment, which was for a misdemeanor only, and we see no such prejudicial error as would justify a reversal of the judgment, and it is accordingly affirmed.

All concur.