Hobbs v. Boatright

1. FRAUDULENT SCHEME: In Pari Delicto: Application of Rule. The doctrine that the courts will not aid a plaintiff who is ire pari delicto with the defendant, is not a rule of universal application. It will not be applied when to withhold the relief asked would to a greater extent offend public morals, or be an aid to a gang of cheating gamesters to continue their nefarious schemes. 2. -: -: Public Policy. The rule is itself based upon public policy, and what is public policy in a given case is as broad as what is fraud in a given case, and either question is addressed to the sound discretion of the court. 3. -: -: -: Plaintiff’s Relief Alone: Other Transactions. Where plaintiff entered into a dishonest scheme with a gang of gamesters to obtain money, and was caught and entrapped by them in their scheme, which was so fraudulently conducted as to make it certain that the plaintiff would lose, the court would not listen to his prayer for relief if there was nothing in the case to make their offense more heinous than his, ■and if to grant him relief would amount to nothing more than to restore to him the money he has thereby lost. But if there have been other like dishonest transactions engaged in by defendants, the court will permit plaintiff to recover the money out of which he was defrauded, in order to aid in breaking up such dishonest pursuits. In such case the court interferes from motives of public policy. 4. -: Liability of Bank: Assistance and Assurance: Consid•eration: Air of Respectability. An assurance by the cashier of a hank that a gang of schemers and gamesters “are all right,” does not make the bank liable to the plaintiff for the money out of which they defrauded him, if before such assurance was given plaintiff knew from the transactions he himself had had with them and from the scheme they had entered into with him, that they were dishonest men. But where the evidence tends to show that the officers of the bank knew the business the gang of gamesters were engaged in and knew their methods of enticing and entrapping strangers like plaintiff into their nets and fleecing them, and so knowing, lent to the gang the appearance of respectability that the backing of a hanking institution affords, and permitted their bank to he used to effect the exchange and transference of the money, even though the bank got nothing more out of the transaction than the exchange and the incidental bank use of the deposits, the bank will be liable to plaintiff for the amount of money out of which he was defrauded by the gang, because for a small consideration it assisted bad men to do a bad deed. The plaintiff, in such case, cannot recover from the bank on the theory that he trusted in the assurance given him by the cashier that the gang were men worthy of confidence, hut becuse of the actual aid the bank, with knowledge of the facts, rendered the gang in defrauding plaintiff. 5. -: Evidence: Other Transactions. Evidence of other similar transactions, in which the defendant bank allowed itself to be used to aid the fraudulent schemes of a gang of gamesters, whether they occurred before or after the transaction in question, is competent, if it tends to show a concerted plan to inveigle and defraud the unwary. It tends to show the unlawful association and the fraudulent course of dealing with the schemers and aiding them to victimize others in the same way. 6. -: Money Lost in Gambling: Unfairness: Nature of Action: At Common Law and Under Statute. The petition states that the president of an athletic club and others had conspired together to have what is called fake footraces run on which strangers were enticed to bet, and that the races were so fixed in advance that whichever racer a stranger bet on he was sure to lose; that schemes to entice strangers were devised, and that the plaintiff was caught in one of these schemes and inveigled into putting $6,000 into the hands of the president as a stakeholder on what plaintiff supposed was a race, with the result that the man he bet on, who was one of the conspirators, was beaten in the race, as it was previously agreed between him and his co-conspirators would be the case, and so the plaintiff lost his money, and that the defendant bank and its cashier aided and abetted the president and his gang in perpetrating the fraud. Held, first, that if the petition was intended to state a cause of action under section 3424, Revised Statutes 1899, hs for money lost at gambling, it contains more than is necessary, for fraud or unfairness in the. game is not essential to the action given by that statute; second, if there was no such statute, the petition states a right of action at common law, that is, that the president and others obtained plaintiff’s money by a fraudulent scheme in which they were assisted by the bank and its cashier. 7. -: Assisted by Bank: Liability of Bank and Cashier. Instructions to the effect that, if the cashier of the defendant bank knew the fraudulent scheme by which plaintiff was defrauded and aided it, he and the bank were both liable, were correct, there being no innocent stockholders to suffer.

Appeal from Jasper Circuit Court. — No». Jos. D. Perkins, Judge. i (1) Even though we should not be correct in our contention that there is now, as a matter of fact, as far as plaintiff is concerned, but one cause of action before this court, which is an action for fraud and deceit, yet the cause of action for money lost at gaming, if there is such a one in the petition, and one for fraud and deceit being blended together in one petition, a general verdict thereon cannot stand, and this is especially true where the testimony is such that he can not recover for fraud and deceit. Mooney v. Kennett, 19 Mo. 554; Bigelow v. Bailroad, 48 Mo. 510; Pitts v. Fugate, 41 Mo. 405; Shuck v. Pfenninghausen, 101 Mo. App. 700; Owens v. Railroad, 58 Mo.-394. (2) Before the plaintiff could properly recover for fraud and deceit, it was necessary for him to allege and prove that the representations he charges against these defendants were-false, that they were known to be false when made, or that they were made of the defendants ’ own knowledge,, when in fact no knowledge or any reasonable grounds to believe that the representations were true were had,, that the plaintiff had a right to and did rely on the-truth of such representations and suffered damage and loss by reason of their falsity. Hamlin v. Abell, 120-Mo. 188; Edwards v. Noel, 88 Mo. App. 439; Paretti v. R'ebenack, 81 Mo. App. 498. (3) The allegations in plaintiff’s petition that defendants, for the purpose of defrauding plaintiff out of his money and winning same, did, by various devices, entice and induce plaintiff to bet the sum of $6,000' on a foot race, are mere conclusions of law and the statement of pleader of his opinion on facts, real or imaginary, not stated, and are meresurplusage, and consequently would not be sufficient on which to base ah action of fraud and deceit or to-connect these defendants with any combination of gaming. Hoester v. Sammelmann, 101 Mo. 624; G-oodson v. Goodson, 140 Mo. 218; Smith v. Sims, 77 Mo. 274;: Nichols v. Stevens, 123 Mo. 117; Bliss on Code Pleading (3 Ed.), sec. 211. (4) If the petition in this case does not state facts sufficient to constitute a cause of action for fraud and deceit, or if the petition does not state sufficient facts and the evidence does not disclose sufficient facts to render the defendants liable in an action on fraud and deceit, the plaintiff, having tried the casein the circuit court upon the theory that the action was one for fraud and deceit, ignoring the theory of an action to recover money lost at gaming, can not now turn about face and contend that this judgment should be sustained upon the theory that it is an action for money lost at gaming, because no-such, question was submitted to or passed upon by the trial court. All of plaintiff’s instructions were on the theory of fraud and deceit. It is the duty of this court to review the rulings of that court and not to pass upon a new case. Raming v. Railroad, 157 Mo. 509; Benton Land Co. v. Zeitler, 182 Mo. 265; Seckinger v. Mfg. Co., 129 Mo. 603; State ex rel. v. Chick, 146 Mo. 661. (5) Plaintiff cannot plead one cause of action, that is, for money lost at gaming, and recover on another, that is, for fraud and deceit, as he has attempted to do in this case. Chitty v. Railroad, 74 Mo. 148. (6) If plaintiff contends here that under his petition and the evidence he was entitled to recover under the statute for money lost at gaming,then it was incumbent on him, under the most favorable view of the law, to adduce testimony and submit his instructions to the effect that there was an agreement between the defendants to divide among themselves whatever might be won from the plaintiff in the game. This the evidence wholly failed to show and the instructions wholly ignored. Laytham v. Agnew, 70 Mo. 48. (7) Conceding for the purpose of the argument that the cashier of defendant bank made the statements which plaintiff testifies he made, that Boatright was all right, yet the dealings of plaintiff with Boatright prior thereto were of such character as to convince a man of ordinary intelligence and honesty that he was not the character of man to be trusted and therefore no cause of action could be based on the alleged representations, as it is necessary that plaintiff should have been deceived and that he relied upon the representations. Priest v. White, 89 Mo. 616; Dunn v. White, 63 Mo. 186; Bartlett v. Blain, 83 111. 27. (8) That the court erred in admitting the testimony of other witnesses as to other alleged transactions, which they tesified to having with some of the parties who were charged with being implicated in this transaction, is amply sustained and the principles applicable thereto fully reviewed in the criminal case prosecuted against Boatright and others, decided by this court. State v. Boatright, 182 Mo. 33. (9) Plaintiff in making out his case shows that he was in pari delicto with Boatright, Fisher, Wasser and associates, hence the maxim “potior est conditio possidentis” applies, and therefore plaintiff cannot recover any sum or sums from the defendants in this case under the theory of fraud and deceit, or of fraudulent gambling transaction. Williamson v. Baley, 78 Mo. 636; Kitchen v. G-reenbaum, 61 Mo. 114; Abbe v. Marr, 14 Cal. 210; Scott v. Brown, 67 L. T. R. (N. S.), 782; Ohio case reported in 22 Weekly Law Bui. 371; Morrison v. Bennett, 20 Mont. 560 ; Plagerty v. Storage Go., 143 Mo. 247; Sprague v. Roney, 104 Mo. 358; Hatch v. Hanson, 46 Mo. App. 330; Knight v. Lindsay, 80 Mich. 396; Shipley v. Reasoner, 80 Iowa 48; 2 Pom. Eq. Jur. (2 Ed.), sec.. 942, p. 1356, n. 1; State v. Crowley, 41 Wis. 271; Tyler v. Larimore,-19 Mo. App. 458; Dent v. Ferguson, 132 U. S. 65; McMullen v..Hoffman, 174 U. S. 669; King v. Winants, 71 N. C. 472; Cooley on Torts (2 Ed.), 174. (10) It is assumed in all of the instructions given in behalf of plaintiff that whatever was done by the defendant Stewart not only rendered him personally liable, but also rendered the defendant bank responsible for his acts. The liability of the bank does not attach when it may have profited by the unauthorized fraud of its officers, unless it is shown that it did accept the fruits of the unlawful transaction with full knowledge. If, under the evidence, the jury may have suspected that the cashier was authorized to make the representations complained of, no finding could be based thereon, as conjectures, suspicions or surmises are not sufficient upon which to base a finding of fact. (11) It requires more than the proof of what the cashier did to render the bank liable, and therefore all of the instructions given in behalf of the plaintiff are erroneous on that proposition. Story on Agency (9 Ed.), sec. 115; Taylor v. Bank, 66 N. E. 726; Hummel v. Bank, 37 N. W. 954; Bank .v. Gifford, 47 Iowa 575; Mayor, etc. v. Bank, 111 N. Y. 446; U. S. v. Bank, 2Í Iiow. 360; Bank v. Dunn, 6 Peters 59. (1) The instructions given on behalf of plaintiff submitted the case to the jury on the theory that plaintiff lost his money at a game or gambling device — fake, simulated and pretended — but still a gaming device, as defined by sec. 3424, Revised Statutes 1899', and that the appealing defendants were liable for the loss of his money, because they conspired and confederated to, and did, in fact, aid and abet the Boatright gang to get possession of plaintiff’s money, and that the simulated gambling device was gotten up expressly to induce plaintiff to bet his money and thereby enable defendants to get and convert the same. The instructions given at defendants’ request submitted the converse of these propositions — and no other — (and defendants’ refused instructions do not suggest the theory of fraud and deceit), and in such case, defendants will not be heard to complain, even though the recovery be upon grounds not stated in the petition. Bank v. Armstrong, 92 Mo. 279; Hilz v. Railroad, 101 Mo. 41; Johnson-Brinkman Co. v. Central, 116 Mo. 558.; Phelps v. City of Salisbury, 161 Mo. 14. (2) The objection that a petition contains two causes of action improperly blended in one count must be raised by written motion (R. S. 1899, see. 619) filed before answer or the same is waived (R. S. 1899, sec. 602) and if the single count contains the essential averments necessary for the two causes of action, directly or by necessary intendment, a motion in arrest will not reach the defect. House v. Lowell, 45 Mo. 381; O’Neal v. Blaize, 94 Mo. App. 655; Stevenson v. Judy, 49 Mo. 228; Murphy v. Railroad, 96 Mo. App. 272; Boyd v. Railroad, 108 Mo. App. 303; Pickering v. Tel. Co., 47 Mo. 457. (3) The proper-practice in cases of this kind, where two canses of action are improperly blended, is to move to require the plaintiff to elect on which cause of action he will proceed, and strike out the other one, before answer, and a motion in arrest of judgment will reach the defect only when one of the two causes so improperly blended in one count is so defectively stated that it will not support a judgment. Mooney v. Keunett, 19- Mo. 551; Kerr v. Plaff, 44 Mo. App. 29; Crystal v. Craig, 80 Mo. 367; Dry Goods Co. v. Buchanan, 79 Mo. App. 532. The motion in arrest is proper where a cause of action in equity and a cause of action at law are improperly blended in the same count because one cause is triable by the court with a jury, and the other without a jury. Tucker v. Allen, 47 Mo. 488; Myer v. Field, 37 Mo. 434; Peyton v. Rose, 41 Mo. 255; Crow v. Peters, 63 Mo. 429. And, where there is more than one separate and distinct cause of action stated in separate counts in the same petition. Boyce v. Christy, 47 Mo. 70; Owens v. Railroad, 58 Mo. 386; Biglow v. Railroad, 48 Mo. 510-; Seibert v. Allen, 61 Mo. 482; Johnson v. Bedford, 90 Mo. App. 43; State ex rel. v. Peterson, 142 Mo. 526. Even if there be more than one cause of action in the petition, either in one or separate counts, if the suit admits of but one finding, and is drawn to meet the chances of proof, the motion in arrest because there is more than one cause of action, and only one finding, will not lie. Owens v. Railroad, 58 Mo. 386; St. Louis v. Allen, 53 Mo. 44; Silcox & Martin v. McKenny, 64 Mo. App. 330. The cases of Hoagland v. Railroad, 39 Mo. 451; Clark v. Railroad, 36 Mo. 202, and McCoy v. Yeager, 34 Mo. 134, holding that a motion in arrest should be sustained in a case like this, was overruled by the case of House v. Lowell, 45 Mo. 381. Bank v. Dillon, 75 Mo. 382; Pickering v. Tel. Co., 47 Mo. 457; Williamson v. Fisher, 50 Mo. 198; Fadley v. Smith, 23 Mo.- App. 87. The petition in this case does not contain two causes of action. It only contains one cause of action. It is an action for money obtained by a gaming transaction, with two grounds of recovery, one under the gaming statute where the action is brought within ninety days, and one on the theory that plaintiff’s money was obtained by a pretended game, to-wit, a fake or fixed foot race, and was by that means stolen from plaintiff, and he is entitled to recover on either or both grounds. The case was submitted on the two grounds. The petition does not state an action for fraud and deceit. And the case was not tried or submitted by the attorneys or the lower court on any such theory, and no instructions were asked by defendant on any such theory of the petition or evidence. (4) The petition states a good cause of action under the gaming statutes. The statute, sec. 3424, Eevised Statutes 1899, gives the right of recovery to “any person who shall lose any money or property at any game or gambling device.” There are no restrictive words. The right is given in as broad language as..could have been used. “Any person” means every and all persons who shall “lose any money.” “Lose” is a word of general meaning, and woiild include money gotten from the plaintiff by theft “at a gambling transaction” as well as by a bet “at a gambling transaction.” “At any game” means in or by means of “any gambling device,” fake, simulated or real. Plerned v. Bergin, 2 Ired. Eq. (S. C.) 589. “Any gambling devices” means every and all “devices” pretended, feigned, simulated and fake, as well as real “gambling devices.” Bank v. Davis, 73 Hun 357; State v. Haugh, 64 N. Y. 400; Leonard v. Commonwealth, 112 Pa. St. 607; Purdy v. People, 4 Hill (N. Y.) 384. And “gambling device” means that which is contrived, invented or planned, something formed by design. Smith v. State, 17 Tex. 792; State v. Blaekstone, 115 Mo. 427; Portis v. State, 27 Ark. 362; Crow v. State, 6 Tex. 336. “Gaming” has no technical meaning’, and foot racing is gaming. Swaggard v. Hancock, 25 Mo. App. 596. The statute, then, gives the right of action to any person whose money or property has been gotten away from him by means of any contrivance, coming within the definition of gaming, whether the means used rendered the parties liable for larceny or only as gamblers. That the footrace was a fraudulent and fixed fake race does not hinder its being controlled by the statutes. Cutshall v. McCowan, 98 Mo. App. 702. (5) More than one right of recovery and more than one ground of recovery may arise out of the commission of a single tort. And several grounds of recovery may be commingled in one count in the petition. Davis v. Miller, 83 Fed. 982; Croft, etc., Co. v. Brewing Co., 63 Conn. 551; Sluder v. Railroad, 88 S. W. 648; Rapp v. Railroad, 88 S. W. 865. Appellants’ point “six” is a gross misstatement of the law promulgated by the case of Laytham v. Agnew, 70 Mo. 48. The law of that case is that, “In the game ‘poker’ each party plays for himself, as was established by the evidence ; and if there be no conspiracy of two or more to cheat another playing in the game, and agreement to divide between themselves any amount they should win from him, each party in the game is only liable to the loser for the amount of money he may win from him. ’ ’ In the game of “footrace” all betters are arranged on one of two sides, and each gambler takes the common results of his side, as shown by the evidence, and both parties tried the case on that theory. (6) If the evidence warranted the jury in finding that plaintiff demanded his money back before the race was run, then upon that ground plaintiff’s recovery is right. Cut-shall v. McG-owan, 98 Mo. App. 702. (7) If a defendant pleads to the merits he waives everything except, first, that the petition does not state facts sufficient to constitute a cause of action; second, that the court has no jurisdiction over the subject-matter of the action. Paddock v. Somes, 102 Mo. 235. However uncertain and indefinte a petition may be, defendant waives Ms objection thereto by answering over, after a demurrer or after a motion of any kind striking at the petition, and cannot have the action of the trial court reviewed. State ex rel. v. Bank, 160- Mo. 640; Bernard v. Mott, 98 Mo. App. 403; Estes v. Shoe Co., 155 Mo. 577; Riley v. Cullen, 159 Mo. 322; Duerst v. Stamping Co., 163 Mo. 607. (8) A corporation is liable for conspiracy to defraud, Alexander v. Relfe, 74 Mo. 517; Zinc Carbonate Co. v. Bank, 74 Amer. St. 845; 4 Am. and Eng. Ency..Law (1 Ed.), 592. (9) And plaintiff may recover against one or all of the defendants. 4 Ency. PI. and Pr., 737-780'. (10) (a) Where there is a conspiracy and confederation to commit larceny, one in the confederation and conspiracy, but not actually present at the taking, is guilty of larceny. Com. v. Hollister, 25 L. R. A. 349 (157 Pa. 13). (b) When two or more persons entered upon an unlawful enterprise with a common purpose to aid, assist, advise and encourage each other in whatever may grow out of the enterprise upon which they enter, each is responsible civilly and criminally for everything which may consequently and proximately result from such unlawful purpose whether especially contemplated or not, and whether actually perpetrated by all or less than all of the conspirators. Martin v. State, 18 Am. St. 91 (89 Ala. 115); 1 Wharton’s Crim. Law, sec. 220. (c) Conspiracy, or a common purpose to do an unlawful act, need not be shown by positive testimony. Nor need it be shown that there was prearrangement to do the specific wrong complained of. Martin v. State, supra; 1 Bishop’s Crim. Law, sec. 649. (11) It is not necessary to allege any overt act when the conspiracy to do the act is itself unlawful. Champ v. Commonwealth, 10 Am. St. 895; 4 Am. and Eng. Ency. Law (1 Ed.), 624; 10 Century Digest, column 1160; United States v. Gooding, 12 Wheat. 475; Banson v. United States, 156 U. S. 468. This being true in a criminal case, it is much more so in a civil case, as the rule of pleading in civil cases is not so strict or technical as in criminal cases. (12) (a) The facts developed in this case show beyond question that there was an organization at Webb City under the management of Robert Boat-right, engaged in running fixed or fake footraces and inducing strangers to come to Webb City in connection therewith, and inducing such strangers by various schemes and devices to part with the possession of their money in connection therewith, that no one outside of the organization ever run in any race. That the races were so arranged that the organization always won. That plaintiff was induced to put his money in a pot on a foot race, with a promise that the amount would be immediately given back to him by one of the gang, but whether he put it up that way or as a bet on the race, the obtaining of his money under the circumstances shown by the evidence was grand larceny. State v. DePreese, 8 Am. Rep. 1; Miller v. Commonwealth (Ky.), 39 Am. Rep. 194; United States v. Murphy (Dist. of Columbia), 48 Am. Rep. 754; People v. Show, 58 Am. Rep. 372; Doss v. People, 49 Am. St. 180; State v. Shilbrick, 87 Am. St. 784; People v. Miller (N. Y.), 88 Am. St. 546; State v. Murphy, 90 Mo. App. 548; State v. Hall, 85 Mo. .669; State v. Zumbrunson, 86 Mo. 111. (b) In note 2 to case of People v. Miller, 88 Am. St. 569, the law is stated as follows: “Where one obtains possession of property by means of fraud, or a trick, with a preconcerted design to steal property, the taking is larceny, for the fraud vitiates the transaction; the owner is still deemed to retain a constructive possession of the property, and the conversion of it by the defendant is such a trespass to that possession as constitutes larceny. Crum v. State, 148 Ind. 401, 47 N. E. 833; Huber v. State, 57 Ind. '341, 26 Am. Rep. 57 ; Flemming v. State, 136 Ind. 149, 36 N. E. 154; Grunson v. State, 89 Ind. 533, 46- Am. Rep. 178; Hecox v. State, 105 Ga. 625, 31 S. E. 592; People v. Rae, 66 Cal. 423, 56 Am. Rep. 102, 6 Pac. 1; People v. Montarial, 120 Cal. 691, 53 Pae. 355; People v. Tomlinson, 102 Cal. 19, 36 Pae. 506; People v. DeGraff, 127 Cal. 676, 60 Pac. 429; People v. Campbell, 127 Cal. 278, 59 Pa. 593; Loomis v. People, 67 N. Y. 322, 23 Am. Rep. 123; Sol-tan v. Gerdau, 119 N. Y. 380, 16 Am. St. 843, 23 N. E. 864; People v. Sumner, 33 App. Div. 338, 53 N. Y. Supp. 817, affirmed in 161 N. Y. 652; State v. Hall, 85 Mo. 669; Commonwealth v. Eichelberger, 119 Pa. St. 254, 4 Am. St. 642,13 Atl. 422; Mitchell v. State, 92 Tenn. 668, 23 S. W. 68; People v. Camp, 56 Mich. 548, 23 N. W. 216; Frazier v. State, 85 Ala. 17, 7 Am. St. 21, 4 So. 691; Commonwealth v. Lannan, 153 Mass. 287, 25 Am. St. 629, 26- N. E. 858; Devore v. Territory, 2 Olda. 562, 37 Pae. 1092; State v. Combs, 55 Me. 477, 92 Am! Dec. 610; Doss v. People, 158 111. 660, 49 Am. St. 180, 41 N. E. 1093. So where one fraudulently obtains the possession of money, agreeing to return the amount or five times the amount in counterfeit money, and immediately appropriates it to his own use with the'intent of stealing it, he is guilty of larceny. Crum v. State, 140 Ind. 401, 47 N. E. 833. Taking possession of bills with the supposed purpose of counting them, but really to fraudulently retain and appropriate them, is larceny. Hecox v. State, 105 Ga. 31 S. E. 592. Inducing one to deposit money with a person for the purpose of getting it into his possession with the intent to thereafter feloniously appropriate it, the act of appropriation, when accomplished, constitutes larceny. People v. Montarial, 120 Cal. 691, 53 Pac. 355. And the voluntary giving of a worthless note for the money is a mere trick to hide the defendant’s real design in such a transaction. People v. Tomlinson, 123 Cal. 19, 36 Pac. 506. Fraudulently obtaining money from a wife under a promise to return it, or pay it to others who would secure an appointment on the police force for her husband, but really with the intention to steal it, is larceny. People v. DeGraff, 127 Cal. 676, 60 Pac. 129. Where two confederates, under the cover of throwing dice, induce another to part temporarily with his money, with the intent of keeping it, the conversion of it is larceny. Loomis v. People, 67 N. T. 322, 23 Am. Rep. 123. One to whom personal property is delivered for a special purpose, hut who intended when he procured such delivery to appropriate the property to his own use, is guilty of larceny. Soltau v. Gerdau, 119 N. T. 380, 16 Am. St. 813, 23 N. E. 861. To obtain a deed of release under the pretense that it was for a temporary purpose only, and then putting it on record, is such a trick or artifice as amounts to a constructive taking, and is evidence of an original felonious intent. ' State v. Hall, 85 Mo. 669. Where one secures possession of a note he has given for sixteen hundred dollars, under the pretense of giving a new note for the same amount, but instead substitutes a note for only-sixteen dollars, with the intent to defraud the bank, the offense is larceny. Commonwealth v. Eichelberger, 119 Pa. St. 251, 1 Am. St. 612, 13 Atl. 122. Getting possession of a man’s horse from his son by fraudulent representation, with the intent of depriving the owner of it, is larceny. People v. Camp, 56 Mich. 518, 23 N. W. 216. To kill another’s animal with the intent of stealing it and then getting the owner’s consent by means of fraud, is larceny. Frazier v. State, 85 Ala. 17, 7 Am. St. 21, 1 So. 691. Obtaining possession of street cars through false pretenses, with the intent of appropriating them to the taker’s own use, is larceny. People v. Lawrence, 70 Hun 80, 23 N. T. Supp. 1095. An attorney who obtains possession of a sum of money from his client upon the false representation that it was the amount necessary to be paid for certain land, which his client desired to buy and who, after paying the real price, appropriated the balance, is guilty of larceny. Commonwealth v. Lannan, 153 Mass. 287, 25 Am. St. 629, 26 N. E. 858. A conspiracy between two persons to get money from another fraudulently on a cheek with intent to steal it, is larceny. Grunson v. State, 89 Ind. 533, 46 Am, Rep. 178. The securing of possession of property by fraud, apparently for a special purpose, but really with the intent to convert it to the taker’s use, becomes larceny when it is converted. Devore v. Territory, 2 Okla. 562, 37 Pac. 1092; People v. Hughes, 91 Hun 354, 36 N. Y. Supp. 493. Obtaining possession of a horse by fraudulently pretending that the taker desired to drive it to a certain place for a specified time, but in fact to go to a different and more distant place, becomes larceny if the taker subsequently converts the horse to his own use with a felonious intent. State v. Coombs, 55 Me. 477, 92 Am. Dec. 610. Compare in re Mutchler,, 55 Kan. 164, 40 Pac. 283. Obtaining money under the pretense that it is bet on a race, and with the intent at the time to convert it to the bailee’s own use, the race being a mere sham to aid this purpose, is larceny. Doss v. People, 158 111. 660, 49 Am. St. Rep. 180, 41 N. E. 1093. Some authorities, notably in New York, directly hold that where property is taken by means of some trick, device, artifice, fraud, or false pretense from the possession of the owner, it is not necessary, even at common law, that it should be taken by trespass, thus apparently dispensing with the trespass which is generally deemed essential to constitute larceny. The artifice, fraud, or false pretense is considered as being a substitute for the usual trespass. People v. Hughes, 91 Hun 354, 36 N. Y. Supp. 493; People v. Lawrence, 137 N. Y. 517, 33 N. E-. 547; People v. Sumner, 33 App. Div. 338, 53 N. Y. Supp. 817, affirmed-in 161 N. Y. 652, 57 N. E. 1120. Fraud supplies the place of trespass in the taldng. People v. Shaw, 57 Mich. 403, 58 Am. Rep. 372, 24 N. W. 121. In other cases it appears to be held that the wrongful taking or trespass máy be constructive, as where the possession is obtained by a trick or fraud. Frazier v. State, 85 Ala. 17, 7 Am. St. 21, 4 So. 691. In Commonwealth v. Lannan, 153 Mass. 287, 25 Am. St. 629, 26 N. E. 858, delivery by fraud would appear to transfer nothing but the mere custody of the property, the legal possession still being in the owner, so that the necessary trespass was committed by a felonious conversion of the property. In State v. Coombs, 55 Me. 477, 92 Am. Dee. 610, it was said that when property was obtained by fraud, the taking or trespass was continuous from the time possession was delivered up to the time of the fraudulent conversion. In Devore v. Territory, 2 Okla. 562, 36 Pac. 1092, it was said that if fraud is used in obtaining possession of property, it will be construed as a trespass. The authorities in general seem to hold that the fraud so vitiates the transaction that the owner is considered as still retaining a constructive possession of the property and a conversion of it by the taker constitutes such a trespass to this possession as makes the offense larceny. Crum v. State, 148 Ind. 401, 47 N. E. 833; Grunson v. State, 89 Ind. 533, 46 Am. Rep. 178; Elliott v. Commonwealth, 12 Buch. 176 ; State v. Reese, 49 La. Ann. 1337, 22 So. 378; Defrese v. State, 3 Heisk. 53, 8 Am. Rep. 1. In Williams v. State, 34 Tex. 558, it was held that in cases of fraud, the trespass, which is necessary to complete the theft, is not the original act of taking possession of the property, for that was with the consent of the owner, but it is the act of taking the property from the special custody, which has by the consent of the owner been intrusted to the thief. In whatever way the different courts may view the matter, the rule itself is clear that where one by a trick, fraud, or false pretense, obtains the mere possession of personal property with the fraudulent intent of appropriating it to his own use, the offense is larceny. The Tennessee courts, which at first denied this rule on the ground that no trespass was committed (Felter v. State, 9 Y'erg. 397), now hold with the recognized rule above stated, by virtue of a statute defining larceny. Coldwell v. State, 3 Baxt. 429.” (c) In the same ease, note 4, page 573, the law is stated as follows: “"Where a person is fraudulently induced to play at cards when he has no chance to win, the game being resorted to as a mere trick to get possession of the money, it is larceny. Hall v. State, 6 Baxt. 522. So, where two conspirators plan a betting trick for the purpose of defrauding one of his money, the offense is deemed lárceny. Defreese v. State, 3 Heisk, 53, 8 Am. Rep. 1. And where the conspirators so fraudulently conduct a game of monte as to give another no chance of winning, and he parts with his money through fraud and fear, it is larceny. United States v. Murphy, 4 McAr. 375, 48 Am. Rep. 754. It would seem, therefore, that where a person loses at a dishonest betting game the game being pure bunco, not knowing it to be such, the person conducting the game is guilty of larceny. State v. Skilbrick, 25 Wash. 555, 66 Pac. 53; People v. Shaw, 57 Mich. 403, 58 Am. Rep. 372, 24 N. Y. 121; Loomis v. People, 67 N. Y. 322, 23 Am. Rep. 123; People v. Shaughnessy, 110 Cal. 598, 43 Pac. 2; Doss v. People, 158 111. 660, 49 Am. St. 180, 41 N. E. 1003. In these cases the innocent bettor usually intends to part with his possession merely, and not with his title. Doss v. People, 158 111. 600, 49 Am. St. 180, 41 N. E. 1093; People v. Shaughnessy, 110 Cal. 598, 43 Pac. 2. In considering this question of parting with the ownership of property in a sham game of cards, Judge Campbell used this vigorous language in People v. Shaw, 57 Mich. 403, 58 Am. Rep. 372, 24 N. W. 121: ‘There is some rather attenuated discrimination to be found in the books between such cheats, as induce a person to give temporary custody of his property to another, who keeps or disposes of it, and those whereby he is induced to part with it out and out. We do not think it profitable to draw over-nice metaphysical distinctions to save thieves from punishment. If rogues conspire to get away a man’s money by such tricks as those which were played here it is not going beyond the settled rules of law to hold that the fraud will supply the place of trespass in the taking and so make the conversion felonious.’ ” The notes to the above case of People v. Miller go fully into the question of the various schemes of obtaining money that constitutes larceny and especially points the various acts that take the place of the trespass in ordinary larceny and make it plain that under the law every dollar obtained by this “Webb City gang was larceny pure and simple. (13) The facts in this case showing it to be a case of grand larceny, plaintiff whose money was stolen has a right to recover the same bv-civil action. R. S. 1899, sec. 2390; Gray v. McDonald, 104 Mo. 303. The' right of action for an injury done in the commission of a felony or misdemeanor is not merged in the public offense. Revised Statutes 1899, section 1879. A criminal prosecution by the State, and a civil action for damages arising from the same act, may be carried on at the same time against the same defendant. Cooley on Torts, 88. The parties of the two actions and the redress afforded by them are different; so that according to the plainest principles of law a judgment in one proceeding is no bar to the prosecution of the other. Freeman on Judg., sec. 319; Cor-win v. Walton, 18 Mo. 72. (14) The point made by appellants that their scheme was so transparently fraudulent and criminal that the plaintiff should not have been deceived into placing his money within their reach, can not avail them. Zimmerman v. Bidwell, 62 Mich. 205; Potton v. Balch, 69 Mo; Jones v. Innes, 32 Kan. 177; Loomis v. People, 67 N. Y. 322; Treacy v. Chinn, 79 Mo. App. 648; State v. Smith, 33 Am. Dec. 133; Bell v. State,, 5 Sneed 507; Portis v. State, 27 Ark. 360; State v. Smith, 2 Yerg. 281; Harrison v. State, 4 Coldw. 195; Eubanks v. State, 3 Heisk. 490; State v. Hayes, 105 Mo. 81. (15) The evidence is conclusive that J. P. Stewart and the Exchange bank were in conspiracy with the Boatright gang and were aiding and assisting them in obtaining the money of parties induced "to come to Webb City and engage in their games, that it was through J. P. Stewart, as cashier of the bank and the dealings and transactions in the bank, that established the confidence necessary to induce the parties to part with their money. And the evidence is strong against J. P. Stewart showing that he knew the character of the business of the gang, and that every outsider brought in lost his money, that the gang was using the bank for the cashing of drafts, checks, etc. That Boatright and Ellis deposited money in the bank and took certificates of deposit in the name of a hired girl. That at one time the bank had an arrangement with the gang that on any drafts cashed by the bank in the footrace deals, upon which payments were stopped, the bank was to reimburse itself out of their money on deposit in the bank. That he knew of and aided in furnishing Boat-right thirty one thousand dollar bills when he was to be examined at to his assets in the Jasper Circuit Court in June, 1901. (a) Those who commit torts, or assist and encourage others in so doing, are bound in solido for the damages occasioned by the trespass. Wallace v. Miller, 15 La. Ann. 449; Irwin v. Schribner, La. Ann. 583. (b) In Shearman and Eedfield on Negligence (5 Ed.), sections .122 and 123, it is said: “Persons who co-operate in an act directly causing injury are jointly and severally liable for its consequences, if they acted in concert, or united in causing a single injury, even though acting independently of each other.” Quoted and approved in DeDonato v. Morrison, 160’ Mo. 591-. (e) All who, with full knowledge of the facts, aid, command, advise or countenance the commission of a tort by another, are equally liable with him who commits it. 1 Waterman on Trespass, sec. 23. (d) This question of aiders and abettors of crime is well treated in note to State v. Hildreth, 51 Am. Dec. 373. (e) All persons who wrongfully contribute in any manner to the commission of a trespass are responsible as principals, and each is liable to the extent of the injury done. Cannifax v. Chapman, 7 Mo. 175; Alfred v. Bray, 41 Mo-. 484; McManus v. Lee, 43 Mo. 206 ; Gray v. McDonald, 28 Mo. App. 477. (16) The admission of evidence showing transactions with other persons similar to the one with plaintiff, in which such other persons lost their money, is legitimate and proper evidence and is admissible on the following grounds, to-wit: First. To show the combination, confederation and conspiracy between Stewart, the bank, Boatright, Ellis and others. Second. To show the system and design and a general or continuous scheme to obtain the money of victims by fake or feed footraces. Third. To show the interest or motive of defendants in the particular transaction. Fourth. To show scienter or guilty knowledge of Stewart and the bank. Fifth. To show that the aid given by Stewart and the bank in aiding in the obtaining of plaintiff’s money was not by accident, mistake, innocent or in the usual and ordinary way of doing bank business. Sixth. To show actual knowledge of Stewart and the bank of the unlawful scheme and device of the Buckfoot gang and active aiding therein. Billings v. State, 52 Ark. 309; Howard v. State, 72 Ark. 586-, 82 S. "W. 201; Johnson v. State, 88 S. W. 905; State v. Adams, 20 Kan. 318; Greenleaf on Evidence, (16th Ed.), pp. 70 to 73, sec. 142; 1 Wigmore on Evidence, secs. 316-346; Wharton’s Crim. Evidence, sec. 35 ; Stewart v. Wright, 130 Fed. 905; Oudin v. Crossman, 15 Wash. 519, 46 Pac. Rep. 1047; Bank v. McAllister (Wash.), 79 Pac. 1110; People v. Ventley, 75 Cal. 407; Ochs v. People, 124 111. 399,16 N. E,. 662; Hunter v. State, 157 Ind. 123, 61 N. E. 1; Smith v. State, 21 Tex. App. 107,17 S. W. 552; Reilly v. U. S., 106 Fed. 896; Patten v. Gurney, 17 Mass. 182; Percival v. Haines, 142 Pa. St. 369; Worth v. McCoy, 87 Iowa 54. (17) In a conspiracy each conspirator loses his individuality and becomes identified with the crime and with the criminal with whom he is associated. U. S. v. Lancaster, 44 Fed. 902; Wells v. Adams, 88 Mo. App. 227; Shubert v. Clark, 49 Minn. 320'. It will be contended also that the record is barren of any testimony showing that the Stewarts or the hank received any benefiit from these transactions. We think that it is fairly inferable that they did receive some benefits, because it is inconceivable almost that men would go to the extent that these defendants went to' protect, shelter and assist a gang of thieves without some benefit to flow to them therefrom. However, it is held that a conspirator is none the less liable because he expects to derive no benefit from the wrong. Felsenthat v. Thieben, 23 111. App. 569; Bredlove v. Bundy, 96 Ind. 319; Jerigan v. Wainer, 12 Tex. 189 ; People v. Daniels, 105 Cal. 262, 38 Pac. 720; Martin v. Leslie, 93 111. App. 44. (18) The enforcing an illegal contract and ascertaining the title to money growing out of it, are distinct and separate. So held by the Supreme Court of the United States and by various state courts. Brooks v. Martin, 2 Wall. 70; McBair v. Gibb, 17 How. 232; Pullman Palace Car Co. v. Central Transportation Co., 171 U. S. 151; Catts v. Phalen & Morris, 2 How. 376; Phalen v. Clark, 50 Amer. Dec. 253 (19 Conn. 421); Zimmerman v. Bidwell, 62 Mich. 205; Jones v. Innes, 32 Kan. 177. In this case Hobbs is not trying to enforce any illegal contract, but is trying to recover his money which defendants obtained by means of it, and in contravention of what they claim was the contract. Where one person delivers property (or money) to another for a certain purpose, which is unlawful, the latter does not thereby authorize him to convert the property to his own use, but trover will lie for it, although the contract under which it was delivered is illegal. Wright v. Stewart, 190 Fed. 905; Hall v. Gorcorran, 107 Mass. 256; Portsmouth Brewing Co. v. Mudge, 64 N. H. 46; Bernard v. Taylor (Oregon), 18 L. R. A. 859; Loomis v. People, 67 N. Y. 322. (19) Money won by cheating at any kind of a game, whether allowed or forbidden, or money obtained by means of jugglery, trick, device, scheme, or fraud, and paid by the loser may be recovered back in a suit by such loser. Wright v. Stewart, 190 Fed. 905; Loomis v. People, 67 N. T. 322; Webb v. Fulchrie, 40 Amer. Dec. 119 (3 Ired. 485); Criswell v. Gaston, 5 Mart, (N. S. La.) 130; Warden v. Plummer, 4 Jones (N. C.) 526; In matter of Arnold, 133 Fed. 789; Smith v. Blachley, 68 Am. St. 887, 188 Pa. St. 550; Haynes v. Rudd, 3 Hun 237.