88 Mo. 604 | Mo. | 1886
This indictment is framed on section 1561, Revised Statutes, and follows the form prescribed in said section and is sufficient, under the rulings of this court, in the cases of State v. Fancher, 71 Mo. 460; State v. Connelly, 73 Mo. 235, and State v. Norton, 76 Mo. 180.
At the close of the evidence on the part of the state, défendant asked an instruction in the nature of a demurrer to the evidence, which was overruled, and this action of the court is assigned as error.
The disposition of this question involves a consideration of the evidence, which is substantially as follows:
Brooker, whose money was alleged to have been obtained by defendant, testified and said: “I was hunting work when I saw a card advertising for parties wanting employment, and obtained the address of J. W. Bayne, Adams House, Kansas City, as the party advertising. 1 came to Kansas City, saw Bayne in August, 1835, at the
On cross-examination, witness said : “ The money I •was to receive as a salary was to come out of what I earned. Bayne taught me how to make or enlarge pictures, as-he agreed to. I felt 'that I was qualified to go
Frost, another witness for the state, testified to the same effect as to Bayne having obtained fifteen dollars from him in the same way he obtained the money from Brooker.
J. C. Somerville, of St. Louis, whom Bayne claimed to repiresent, testified that he did not know defendant; that he never had been his agent, nor had he ever received any orders for supplies from Bayne.
Officer Snow, who arrested Bayne, testified as to the statements made by Brooker and Frost to him prior to Bayne’s arrest, and that he saw Bayne, who promised to refund the money he had obtained from the conxplainants. On his failure to do so the officer went again to arrest him; found he had gone, and apprehended him at the Union depot, in Kansas City, where he was dodging around the cars and attempting to evade the officer.
If the statute on which the indictment is founded were like the New York statute, which makes it an offence to obtain money or property by mock auctions, or “by any other gross fraud or cheat at common law,” the case of Ranney v. People, 22 N. Y. 414, to which we have been cited, would apply,' and the evidence above detailed would not support the indictment. But our statute is widely different and much more comprehensive in its scope. It provides that, “Every person who, with intent to cheat and defraud, shall obtain, or attempt to obtain, from any other person, or persons, any money, pi’operty, or valuable thing whatever, * * * by use of any trick or deception, or false and fraudulent representation or statement, or pretense, or by any other means, or instrument or device, commonly called the confidence game, or by means or by use of any false or
If the offence defined by the statute had been limited to obtaining money by a false pretense, the case of the State v. Vorback, 66 Mo. 168, cited by counsel, would apply and have justified the court in giving the instruction asked. But it is not so limited, for under the statute, obtaining money from another with the intention of cheating and defrauding “by use of any trick or deception, or false and fraudulent representation,” is made a felony. The evidence above detailed tends strongly to show that the money, was obtained by defendant from Brooker by the false and fraudulent representation that he was the agent of J. C. Somerville, of St. Louis, and as such, authorized to furnish Brooker with an outfit to enable him to enter in the business on which defendant was to send him. Somerville testified that this representation was false, and that he did not know the defendant. The demurrer to the evidence was properly overruled.
An objection was also made to the evidence of witness Frost, who was allowed to testify that defendant had obtained money of him in about the same manner he had obtained it of Brooker, and near the same time, in the same town or .city. In'the case of State v. Myers, 82 Mo. 558, while the correctness of the general rule (announced in 76 Mo. 351, and 70 Mo. 289), that a distinct crime for which the party might be separately proceeded against, cannot be given in evidence against the-prisoner on trial for a single or separate offence, was fully and distinctly recognized, it was expressly held that the-rule was not of universal application, but had exceptions, and that in a prosecution founded on said section-1561, Revised Statutes, it was competent for the purpose
The court gave nine instructions,- all of which were excepted to, and refused two asked by the defendant. No exceptions having been taken at the time to .the action of the court in refusing the instructions asked by defendant, they will not, for that reason, be considered. Those that were given presented, the law of the case fairly to the jury, four of which were as follows :
“1. If you shall believe and find, from the evidence, that at any time within’ three years next before the first day of September, 1885, at the county of Jackson, state of Missouri, the defendant, intending to cheat and defraud, obtained from the witness, F. Brooker, any amount of money of any value whatever, the same being the money and the property of the said Brooker, by means of a cheat or a fraud, or a trick or deception, or a false or fraudulent representation or statement, or a false pretense or confidence game,' you will find the defendant guilty as charged.”
“2. If you shall find and believe that the only money given to the defendant by the witness, Brooker, was in payment for instructions which he had received in the art of preparing or changing in appearance pictures or photographs, you will find him not guilty.”
£ £ 3. If you shall find and believe, from the evidence, that the transaction had between defendant and Brooker was had and entered into in good faith.or with an honest intent on the part of the defendant, you will find him not guilty.”
The fifth, sixth, seventh and eighth instructions are •omitted, as no point was made on them, and as they relate in approved form to reasonable doubt, and the rules governing the jury as to credibility of witnesses'-and in weighing the evidence.
The ninth instruction is as follows:
“9. The testimony introduced before you relative to transactions between the defendant and persons other than the witness Brooker, you should take it into account and give it such weight as you deem proper in determining the intent of the defendant, and his good faith or honesty of purpose in any transaction you may believe he had with said Brooker, but, although you may believe that the defendant behaved dishonestly with such other persons, you cannot convict him unless you shall also-further believe and find that he obtained money from said Brooker in a manner such as to constitute crime according to number one of these instructions.”
Perceiving no well grounded objection to the instructions given, and finding no error in the record justifying an interference with the judgment, it is hereby affirmed.