68 Mo. 140 | Mo. | 1878
After a very careful consideration of this case by all the members of this court, we have reached the conclusion that the indictment is insufficient, and that the judgment of the circuit court should be affirmed. The prosecuting attorney attempted to set out two false pretenses, one in relation to the title, and one in relation to the abstract. The false representation charged to have been made by the defendant, in regard to the abstract, was, that he had an abstract prepared by one Daniel G. Saunders, showing the title to be in him. This representation was not negatived in the indictment. The pleader did not aver that this representation was untrue, but he averred that the abstract itself was false and untrue, in that it did show the title to be in the defendant. If such was the fact, this abstract should have been set out as a “false token or writing,” and the defendant should have been charged with designedly, feloniously and falsely pretending that it was a true abstract and correctly represented the title to be in him; and this charge should have been accompanied with a proper negative, and an averment of the scienter.
In regard to the representation as to the title, we are of opinion that the indictment is defective in failing to allege that the defendant knew that he had no title to the land at the time he represented himself to be seized in fee. The defendant’s knowledge of the falsity of the pretense is material, and must always be averred unless the pretenses are of such a character as to exclude the possibility of the defendant not knowing of their falsity. 2 Wharton’s Crim. Law, § 2159. Whether a party has, in a given case, a title in fee to land, is a matter about which there may be a difference of opinion, even among those most conversant with such subjects. Now, an opinion, a mere opinion, however false, is not a false pretense. 2 Bishop’s Crim. Law, (Ed. 1865,) §§ 431, 433. It is especially necessary, therefore, when the pleader undertakes to negative a representation as to the title to land, to add the scienter.
Affirmed.
