"This contract and agreement entered into this 9th day of April, 1910, by and between Ernest Lovan, of Kansas City, Missouri, hereinafter called party of the first part and G. F. Hannay, of Kansas City, Missouri, hereinafter called the party of the second part, witnesseth: "That whereas, the party of the first part is now engaged in the general real estate and brokerage business, having offices at 517-521 Finance Building, Kansas City, Missouri; and whereas it is his intention to enlarge his business, giving more attention to the han sociate with him the party of the second part, and with this end and purpose in view, the party of the first part binds himself and guarantees to do as follows: "First. That he will transfer to party of the second part one-half (2) of the stock of the Ernest Lovan Investment Company, an incorporation under the laws of Missouri. that said Hannay, believing the said Ernest | The state introduced in evidence the fol- false and fradulent statements and pretenses, "Second. That party of the first part will convey to said investment company for the use and benefit of said company the real estate and personal property hereinafter described, guaranteeing that each and every tract of land specified is free and clear of all incumbrances, save and except such incumbrances as may be noted at this time, and that the valuation placed by the party of the first part against each separate tract, piece or parcel of land is a fair and just cash valuation, and that it will and must net the company at least a profit of five thousand dollars ($5,000) within a reasonable time. Description of Property Clear and Free from Incumbrance. Flat property located No. 575 Oak St., Kansas $6,000 00 $2,000 00 4 cottages, 100 feet ground (front), Topeka, Office furniture and fixtures.. 000, Mtg. $500, equity.. $2,500, Mtg. $1,000 equity.. Mtg. $500, equity.. souri, value $2,000, Mtg. $2,500, equity....... $ 300 00 $1,000 00 $ 400 00 $1,500 00 $1,500 00 $ 500 00 700 00 $1,000 00 "Third. The real estate above described is subject to change by agreement of the parties hereto; that is to say, that if the party of the second part desires other real estate tuted for any property listed herein, then the same is to become an asset of the Ernest Lovan Investment Company, and such substitution will be made by the party of the first part. One of the main features and points to this agreement on the part of the party of the first part is that the property shown and described belonging at this time to the Ernest Lovan Investment Company must and shall net to said company within a reasonable time at least twenty-five thousand dollars ($25,000) which will be a profit of (25) per cent. on twenty thousand dollars ($20,000). the property of the Ernest Lovan Investment Company, real and personal, is to secure the carrying out of this contract according to the legal tenor and effect, and further understood that the party of the second part may, if he so elect, sell and assign his stock either with or without this contract and agreement, provided he has first given notice to the party of the first part that he wishes to sell in accordance with section seven (7) of this contract. "To all of which we bind ourselves, our heirs, executors and administrators forever. "Ernest Lovan. "G. F. Hannay.” "Fourth. The party of the first part agrees to accept from the party of the second part, for the interest as herein stipulated, the All of the parcels of real estate were sum of ten thousand dollars ($10,000), and eliminated from the case, save the 280 acres that he will accept for the ten thousand in Morgan county, Mo. The case went to dollars ($10,000) the interest of said party the jury upon the representations concerning of the second part in the Palace Stable this one parcel. Testimony was given for Company and the Fashion Stable Company. the state tending to sustain the allegations The transfer of the interest of the party of the second part in this company is distinctly understood to be without any guaranty on his part as to the value of such interests. "Fifth. The party of the first part agrees to loan the Ernest Lovan Investment Company immediately one thousand dollars ($1,000), same to be placed in the bank to the credit of the company. He further agrees to loan them an additional one thousand dollars ($1,000) if needed at any time within the next six months (6), to insure the party of the second part his salary of two hundred dollars ($200) per month. Conveyances of any kind for property belonging to said investment company, whether real or personal, and all checks drawn on the bank, are to be signed by the president and secretary in their official capacity. Ernest Lovan, party of the first part, is to be president, and C. F. Hannay, party of the second part, is to be secretary and treasurer. "Sixth. The party of the second part is to give particular attention to land and farm sales, and it is understood that he will devote such time as may be necessary to the examination of such property. "Seventh. In the event of the dissatisfaction on the part of either party, it is understood that the party of the first part is to buy for cash the interest of the party of the second part, and pay him therefor within three months from written notice the actual value at the time of sale, which shall not be less than the amount of the original investment, ten thousand dollars ($10,000). It is understood that if withdrawals have been made from the business in excess of salaries that the same is to be taken into consideration and applied against the original investment and profits. in the information. The evidence for the state showed that at the time when the alleged representations were made the Morgan county land was incumbered by two deeds of trust. The defendant testified that he told Hannay about these incumbrances, and told him, further, that he had arranged to clear them from the land. Hannay testified that defendant specifically told him, before the trade was made, and before the contract above set forth was signed, that this land was clear and free from incumbrances. Further facts necessary to an understanding of the questions discussed herein will be found in the opinion. Cooper & Wilson, Wofford & Kimbrell, and lant. Elliott W. Major, Atty. Gen., and John Moore & Creel, all of Kansas City, for appelM. Atkinson, Asst. Atty. Gen., for the State. FERRISS, J. (after stating the facts as above). [1] 1. It is claimed that the inforшation is bad, under section 4565, R. S. 1909, because of the absence of the word "designedly," which is an essential element of the offense defined by the statute. This court has held that an information omitting the word "designedly" is bad under said section. State v. Pickett, 174 Mo. 663, 74 S. W. 844. This holding is somewhat doubtfully recognized in State v. Martin, 226 Mo. loc. cit. 547, 126 S. W. 442. We need not re-examine the question, as we consider the information good, under section 4765, R. S. 1909. Defendant contends that the information is bad under section 4765, and sets out his contentions thus in his brief: "(3) The information is bad, under section 4765, Revised Statutes of Missouri 1909, for the reason that it does not charge that Hannay, "by means or by use of" the alleged misrepresentations, trick, or deception, was induced to assign, convey, transfer, and de "Eighth. Both parties hereto are to receive a salary of two hundred dollars ($200) per month. This may be changed at any time by mutual consent. transfer, and deliver, to Lovan all of said an offense as defined by the statute, and shares of stock. clearly sets forth the facts on which the "(4) The information is bad, under section charge is based, it is sufficient. Measured 4765, Revised statutes of Missouri 1909, for by this rule, the information is good. We the reason that the alleged trick, deception, do not agree with the reasoning of the Massaor false and fraudulent representations are chusetts court, above set forth. A charge not set forth in the information with particu- of felonious intent is necessarily a deduction larity, so that the accused might be informed or inference from the alleged facts. The sufficiently of the cause and nature of the charge in the final paragraph of the informaaccusation. tion sufficiently charges the intent, and ap"(5) The information is bad, for the rea-propriately refers to the previous allegations son that it does not charge that said Lovan of fact upon which the inference naturally falsely, fraudulently, and feloniously offered arises. and proposed to him, the said Hannay, that he, the said Lovan, would then and there trade, transfer, and convey to him, the said Hannay, one-half of the capital stock of the Lovan Investment Company, and falsely, fraudulently, and feloniously offered and proposed that said Lovan would then and there trade, transfer, and convey to Hannay one-half of the real estate described." There is, we think, no merit in the contentions embraced in the above fourth and fifth assignments. The other assignment, No. 3, raises a serious question of pleading. There is authority for the position taken that the information is technically defective, according to approved precedents, because in the charging part there is no charge that the defendant obtained the stock from Hannay by means or by use of the false pretense; in other words, it does not charge the specific offense defined by the statute. This charge is found only in the last paragraph of the information. Upon precedent, it should appear in the body of the information, immediately after the allegation that Hannay, believing said representations, etc., was induced thereby, and did, convey, etc. Approved forms in this regard may be found in State v. Martin, supra; State v. Donaldson, 148 S. W. 79; Wharton, Prec. of Indict. vol. 1, form No. 529 et seq. In Commonwealth v. Dean, 110 Mass. 64, an indictment similar in form to the one under discussion was held bad. The court, speaking of the concluding statement, says: "It is a statement of a legal conclusion from the facts charged. The conclusion does not follow the premises. The only allegation of intent to defraud is made argumentatively and as a legal inference from facts stated, and the inference is unsound." The contention of defendant also finds support in State v. Pickett, supra. The point, however, was not controlling in the latter case. The main objection was the failure to describe the false pretense, and it was upon that ground that the information was held defective. We are not disposed to encourage purely technical objections, based upon ancient forms and precedents. With due respect for precedent and rule, we think that when an information, taken as a whole, clearly advises the defendant that he is charged with [2] 2. The defendant makes the following objection to instruction No. 1, given by the court: "Instruction No. 1 is erroneous, for the reason that it assumes and directs the jury that Ernest Lovan and the Ernest Lovan Investment Company were not the owners of the real estate described, assumes and directs the jury that said real estate was not free and clear of incumbrances, assumes and directs the jury that Ernest Lovan knew that said real estate was not free and clear, and assumes and directs the jury that Lovan knew it was mortgaged." Said instruction is as follows: "The court instructs the jury that if they find and believe from the evidence that at the county of Jackson and state of Missouri, at any time within three years next before the 29th day of October, 1910, the date of the filing of the information in this case, that the defendant, Ernest Lovan, with intent unlawfully and feloniously to cheat and defraud one George F. Hannay, did falsely, fraudulently, and feloniously represent and pretend to the said George F. Hannay that he, the said Ernest Lovan and the Ernest Lovan Investment Company, a corporation organized and existing under the laws of the state of Missouri, were then and there the owners in fee simple, free and clear of all incumbrances whatsoever, of the real estate set out and described in the information as lying and being in Morgan county, Missouri, and that the said George F. Hannay was then and there the lawful owner of one hundred and twenty-seven and 'two-sevenths (1272/7) shares of the capital stock of the Palace Stable Company, a corporation organized and existing under the laws of the state of Missouri, and engaged in Kansas City, in said state, and that said shares of stock were at said time of the value of $30 or more, and of one hundred and sixty (160) shares of the capital stock of the Fashion Stable Company, a corporation organized under the laws of the state of Missouri, and engaged in Kansas City, in said state, which said shares of stock were at said time of the value of $30 or more, and that the said Ernest Lovan then and there offered and proposed to him, the said George F. Hannay, that he, the said Ernest Lovan, would then and there trade, transfer, and convey to him, the said George F. Hannay, one-half of the the capital stock of the Fashion Stable Company, as above described, and the said property was of the value of $30 or more then you will find the defendant guilty as shown in the information, and assess his punishment at imprisonment in the state penitentiary for a term of not less than two years, and not more than five years." The use of the word "whereas" in the negative part of this instruction is awkward and meaningless. Still, by using before it the words "if the jury shall further find that," the defect pointed out by this court in State v. Steele, 226 Mo. 583, 126 S. W. 406, cited by defendant, is cured. [3,4] Defendant offered, and was refused, an instruction directing the jury to acquit, on the theory that there was a failure of proof. The information describes the land in Morgan county as follows: "The west half of southeast quarter and southeast quarter of northeast quarter and the northeast quarter of the southeast quarter, all in section 10, township 40, range 19, containing 160 acres; and the east one-half of the northeast quarter of section 15, and the southeast quarter of the southeast quarter of section 10, township 40, range 19, containing 120 acres, all in Morgan county, Missou capital stock of the said Ernest Lovan In- | said shares of the capital stock of the Palvestment Company, a corporation as afore- ace Stable Company and the said shares of said, and would then and there trade, transfer, and, by good and sufficient warranty deed, convey to the said Ernest Lovan Investment Company one-half of the real estate above described in exchange for the said shares of stock of Palace Stable Company, a corporation as aforesaid, and the said shares of stock of the Fashion Stable Company, owned by said Hannay as aforesaid, and that the said George F. Hannay, believing the said Ernest Lovan and the Ernest Lovan Investment Company to be the owners of said real estate described as aforesaid, and believing the said statements of said Lovan in that behalf, made as aforesaid, to be true, and relying thereon and being deceived thereby, was induced by reason thereof to assign, convey, transfer, and deliver to the said Ernest Lovan all of the said shares of stock in the said Palace Stable Company and the said Fashion Stable Company, as above set forth and described, by him, the said George F. Hannay, owned as aforesaid, in exchange for one-half of the capital stock of the said Ernest Lovan Investment Company, which he, the said Ernest Lovan, did then and there pretend to assign and convey to him, the said George F. Hannay; and if the jury further find that whereas, in truth and in fact, neither | ri"-making in all 280 acres. the said Ernest Lovan nor the said Ernest Lovan Investment Company was then and there the owner of the said real estate, as hereinbefore described, free and clear of incumbrances; and if the jury shall further find that whereas, in truth and in fact, the said Ernest Lovan and the Ernest Lovan Investment Company, or either of them, was not then and there the owner of the lands in Morgan county, Missouri, hereinbefore mentioned and described, free and clear of all incumbrances whatsoever, but that the said land, and every part thereof, was then and there incumbered with a valid and subsisting mortgage lien of fourteen hundred ($1,400.00) dollars, by virtue of two deeds of trust, both dated July 3, 1909, executed by J. E. Snodgrass to J. E. Berry to secure the payment of two promissory notes of even date for six hundred ($600.00) dollars and eight hundred ($800.00) dollars, respectively, the former due in nine months after its date, the latter due one year after its date, both notes drawing interest at the rate of 7 per cent. per annum, said mortgages being of record in the office of the recorder of deeds of Morgan county, Missouri, in Book 21, page 396, all of which he, the said Ernest Lovan, then and there well knew; and if the jury further find and believe from the evidence that the said Ernest Lovan, by means of the said deception and false and fraudulent statements and pretenses, if any, so made as aforesaid, then and there unlawfully, knowingly, and fraudulently and feloniously did obtain of and Hannay testified that defendant told him that he owned 280 acres in Morgan county, Mo., free and clear of incumbrances, and gave him a list of the lands owned by him, all of which lands he said were clear and free of incumbrances, except those designated otherwise in the list; and that he copied this list into the contract read in evidence. In that contract appears this item in the list of lands: "280 acres, Morgan county, Missouri, $3,500." Hannay further produced and put in evidence two deeds, one for 160 acres and one for 120 acres, in Morgan county, Mo. The description in the two deeds, taken together, corresponds to the description in the information. Hannay testified that defendant handed him these two deeds, in response to his request for a description of the 280 acres mentioned in the list in the aforesaid contract, and told him that they covered that property. All this testimony was strenuously objected to as not sustaining the description of the property in the information, and also because these deeds were handed to Hannay by defendant after the transaction complained of was completed. The deeds were admitted for the sole purpose of establishing a description of the 280 acres. We think the court committed no error in overruling the objections, and consequently no error in refusing the instruction offered by defendant. The introduction in evidence of the two deeds and the testimony therewith tended to establish the identity of the 280 acres mentioned in the ། resentations, with the land described in the transaction involving defendant, and of a information. fraudulent nature. Objections by defendant [5] 3. The testimony for the state develop- were overruled. A witness was permitted ed the fact that at the time when the al- to testify to the facts of this transaction, leged representations were made by defend- against defendant's objection. After the tesant concerning the Morgan county land, the timony was in, the court ruled it incompesame was incumbered by two deeds of trust tent, and withdrew it, by verbal direction, of several hundred dollars each. Defendart from the jury. The unfairness to defendant testified that he told Hannay of the exist- of such proceeding is obvious. The evidence ence of these two incumbrances, and told was damaging to the character of the dehim, further, that he had an arrangement fendant. The court, by this ruling and direcwith the holder of them, Mr. J. J. Swofford, tion, withdrew it from the jury in form; by which he could get them at any time and but was it within the court's power to withclear them. Mr. Swofford testified that he draw it from their consideration in fact? held the two deeds of trust on this Morgan It is easy to believe that a man who has county land, and that they had been put done wrong once will do wrong again. The up with him by defendant as collateral for converse of this is recognized by the law, a loan. Defendant's counsel asked Swofford, when it permits proof of good character to in substance, whether he had a conversation be given in evidence in favor of a defendwith defendant with reference to surrender- ant. Out of consideration for the defending these notes. Objection by the state was ant, our law, whether wisely or not, refuses sustained. Defendant urges that this ruling to permit the state, in making out its case, was error materially affecting his rights. to give evidence of bad character, or of The state contends that defendant has no former crimes committed by the defendant; standing to urge this assignment, because yet knowledge of bad character and former he made no formal offer to show such ar- offenses is exceedingly persuasive to believe rangement to take up the notes as defend- in the truth of the present charge. It is ant claimed; and, further, that, even if there practically impossible for a man sitting in had been such an arrangement, it would be judgment to exclude from the final make-up immaterial. The defendant's counsel suffi- of his mind facts which have lodged there, ciently indicated their purpose, and the court even if the court gravely tells him that such so understood it. The ruling of the court facts should not have been disclosed, and was put upon the ground that such arrange- tells him, further, not to consider them. The ment was immaterial, inasmuch as it had not | court does not tell him that such statements been carried out. We think the objection are not true. The objections by counsel for to this line of inquiry should have been over- | defendant probably convince him that they ruled. If an arrangement existed by which are true. He may believe that the witness defendant could at any time clear the lien has testified truthfully to facts which the of these deeds of trust, that fact would be court tells him he should not consider. So material upon the question of intent. De- that to the juror it must appear that he is fendant had testified, without objection by directed to exclude from consideration the the state, that he had told Hannay that he truth, and a truth of a most convincing charhad an arrangement with Swofford by which acter. He is unable to obey this direction if he could at any time get these notes and he would. Hence, so long as this rule of exdeeds of trust. We think testimony upon clusion is the law, it is incumbent upon the this point from Swofford would be compe- court to see to it that such evidence does not tent in corroboration of the testimony of get before the jury. We have suggested defendant. If defendant pledged these mort- what we regard as the proper course in such gages to Swofford, it is fair to assume that case in State v. Hyde, 234 Mo. 200, 136 S. he owned them. Suppose he had not pledg- W. 316. In the case at bar it would have ed them, but was holding them as owner been a simple matter, when the objection -it is conceded that he had title to the was first made to the opening statement, to land and had said, under such conditions, send the jury out, get a full statement from that the land was clear of incumbrances, it the prosecutor, and rule on the question. would hardly be claimed that such facts Whether a case should be reversed where could not be shown upon the question of this is the only error committed, we need criminal intent. Yet, if he had an agreement not decide, as the ruling finally made by the by which he could certainly clear the land trial court will, no doubt, control the matter of these mortgages, although they were hy- if it comes up on a retrial. pothecated, and intended so to do, the effect would be practically the same, so far as the facts related to a criminal intent. The ruling of the court was prejudicial error, and must result in a reversal of the judgment. [6] 4. In his opening statement the prosecutor detailed to the jury certain facts which [7] 5. It is finally urged that the contract read in evidence does not sustain the charge in the information. It was argued that the written contract does no more than bind the defendant to a guaranty of title, and does not amount to an assertion of present clear title. If the case depended solely upon the |