117 Mo. 371 | Mo. | 1893
— At the September term, 1891, of the-circuit court of Lincoln county, Missouri, there was-returned into court by the grand jury, an indictment against defendant, which is as follows:
“The grand jurors of the state of Missouri, empaneled, sworn and charged to inquire within and for the-body of the county of Lincoln, state of Missouri, upon their oaths do charge and present that one A. Q. Cameron, on or about the twenty-eighth day of April, A. D. 1891, at the county of Lincoln, state of Missouri, with intent to cheat and defraud one, Gophat. Stimlinger, of his money, property and other valuables,, did then and there unlawfully and feloniously obtain from said Gophat Stimlinger his negotiable promissory note, which said note bound the said Gophat Stimlinger for the payment of $542.25, by means and use of a. trick and deception, and by false and fraudulent representations and statements and false and fraudulent pretense, and by means of the confidence game, and by means and use of a written instrument, and which said negotiable promissory note, obtained in the manner and by. the means aforesaid from the said Gophat Stimlinger by the said A. Q. Cameron, was then and there a thing of value, and bore the date of' April 23, A. D. 1891, and was payable ninety days-*373 after date to the said A. Q. Cameron or bearer, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state.”
On the twelfth day of April, and during the April term of said court, the defendant filed his motion for a change of venue, which was granted, and the cause was sent to the circuit court of Montgomery county, Missouri.
At the July term of the Montgomery circuit court the defendant filed a motion to quash the indictment against him, to-wit:
“Now comes the defendant in above cause and moves the court to quash the indictment herein for the following reasons: First. Because said indictment does not charge the defendant with any offense to the laws of this state.. Second. Because said indictment is insufficient in form and substance.. Third. Because said indictment charges the defendant with the use of •several different means in the accomplishment of the pretended fraud, without specifying which one of said means did iff fact accomplish said pretended fraud. Fourth. Because the different means for the accomplishment of a fraud specified in section 3826 do not mean the same thing, and cannot be used in the aggregate, in charging one offense under said section. Fifth. Because said indictment does not inform said defendant which act or acts of his he is required to defend. Sixth. Because said indictment does not inform the defendant of the nature and cause of the accusation against him, as required by section 22, article 2, of the constitution of the state.”
On the nineteenth day of July, 1892, at said July term of said court, the motion to quash was by the •court ■ sustained, and judgment rendered discharging
, The indictment is drawn under the provisions of section 3826, Bevised Statutes, 1889, which is as follows:
“Every person who, with intent to cheat and defraud, shall obtain or attempt to obtain from any other person or persons any money, property, or valuable thing whatever, by means or by use of any trick or deception or false or 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 bogus check, or by any other printed or engraved instrument, or spurious coin or metal, shall be deemed guilty of a felony, and upon conviction be punished by imprisonment in the penitentiary for a term not exceeding seven years. In every indictment under this section it shall be deemed and held a sufficient description of the offense to charge that the accused did on-unlawfully and feloniously obtain or attempt to obtain (as the case may be) from A. B. (here insert the name of the person defrauded) his or her money or property, by means and by use of a cheat or fraud, or trick or deception, or false and fraudulent representation or statement, or false pretense or confidence game, or false and bogus check or instrument, or coin or metal, as the case may be, contrary to the form of the statute,” etc.
The indictment charges the defendant with obtaining from one Gophat Stimlinger his promissory note for the sum of five hundred and forty-two dollars and twenty-five cents, by means and use of a trick and deception and by false and fraudulent representations and statements and false and fraudulent pretense, and by means of the confidence game, and by means
“Where a statute in one clause forbids several things or creates several offenses in the alternative, which are not repugnant in their nature or penalty, the clause is treated in pleadings as though it created but one offense; and they may all be united conjunctively in one count, and the count is sustained by proof of one of the offenses charged.” State v. Woodward, 25 Verm. 616; 1 Bishop on Criminal Procedure, sec. 191; Bishop on Criminal Law, secs. 274, 803, 810.
But, notwithstanding the indictment is not bad for duplicity, a much more serious question is as to the constitutionality of the section of the statute under which it is drawn. Section 22, of article 2 of the state constitution, commonly called the bill of rights, declares that: “In criminal prosecutions the accused shall have the right * * * to demand the nature and cause of the accusation.” How the defendant was to know the nature of the accusations against him, under the indictment, and to prepare to defend himself against them, is difficult to conjecture. Who is to determine what a confidence game is; what are false and fraudulent representations or pretenses, unless the facts which constitute such offenses are set forth in the indictment that the court may determine, ¿nd that the defendant may know, what he is charged with and what charges he must prepare to meet!
The opinions of the members of this court have not been in harmony on the constitutionality of this statute, although it has been several times passed upon. State v. Fancher, 71 Mo. 460; State v. McChesney, 90 Mo. 120; State v. Horn, 93 Mo. 190; State v. Beaucleigh, 92 Mo. 490; State v. Connelly, 73 Mo. 235; State v. Crooker, 95 Mo. 389; State v. Terry, 109 Mo. 601; State v. Jackson, 112 Mo. 585; State v. Sarony, 95 Mo. 349.
It was held in the ease of the State v. Terry, supra, Sherwood, J., delivering the opinion of the court, Brace and G-antt, JJ., concurring therein, that the statute under consideration is unconstitutional, in that it deprives the accused of the constitutional guarranty; that “in criminal prosecutions the accused shall have the right * * * to demand the nature and cause of the accusation,” which we think decisive of the case in hand, and which we follow and approve. See, also, State v. Benson, 110 Mo. 18. Judgment affirmed.
