19 Mo. 233 | Mo. | 1853
delivered the opinion of the court.
The defendant, Ohunn, was indicted at the May term, 1853, of the Criminal Court of St. Louis, for obtaining money from one Solomon P. ICetcham by false pretences.
The indictment charges the false pretence to be in the sale of a negro woman named Lucy, for $600, which it charges that defendant sold to said Solomon P. Ketcham, falsely pretending that he, the said defendant, was the owner of said negro woman, and that he had full right and authority to sell her. The indictment sets forth the bill of sale for said negro
The defendant moved to quash this indictment, because it did not show a case of obtaining money under false pretences, within the true meaning and intent of the act in such case made and provided. The court sustained this motion, quashed the indictment, and the State brings the case here by appeal.
The only questions involved arise on the validity of the indictment. Is the transaction set forth in the indictment, such a false pretence as is embraced by our statute ? And is the indictment sufficient on its face ?
The 49th section of art. 8 of the act concerning crimes and punishments, R. C. 1845, p. 363, declares that, “ Every person who, with intent to cheat or defraud another, shall, designedly, by color of any false token or writing, or by any other false pretence, obtain the signature of any person to any written instrument, or obtain from any person any money, personal property, right in action, or other valuable thing or effects, whatsoever, upon conviction thereof, shall be punished in the same manner, and to the same extent, as for feloniously stealing the money, property or thing so obtained.”
In the case of the King v. Codington, 1 Carrington & Payne, 661, (also in Eng. Com. L. R. 518,) the indictment was for obtaining money by false pretences. It charged that the defendant obtained the sum of ¿629 3s. by falsely pretending to a person named Varlow, that he was entitled to a reversionary interest in the one-seventh share of a sum of money left by his grand-father, whose name was Wickes ; whereas, in fact, he was not entitled to any interest in any share, &c., negativing the pretences. Plea, not guilty. It was stated, in opening, that the defendant pretended that he was entitled to the reversionary interest mentioned in the indictment, and thereby induced Varlow, the prosecutor, to purchase it on the 22d December, 1824, at the price of ¿629 3s. — the defendant having, in fact, sold all his interest in it to a person named Pick, on the 18th September, 1824. To prove the pretence, a deed dated December 22, 1824, assigning the defendant’s interest in his one-seventh share of the money to Varlow, was put in, and in this deed, there was the usual covenant for title. The prisoner’s counsel objected that this deed was no evidence of any false pretence, for if it was, every breach of every cove
In the opinion of this court, the false warranty in the sale of the negro woman, is not such a fraudulent pretence as was contemplated by our legislature. The purchaser must resort to his civil action for the breach of that warranty. The pretence with a warranty is not a criminal false pretence. So much, then, for the transaction set forth in the indiqtment.
. In the opinion of this court, the indictment is not sufficient^ and the judgment of the court below, in quashing the same, is affirmed ;