100 Mo. 571 | Mo. | 1890
The defendant was tried under the following indictment:
“State of Missouri,
“County of Newton,
SS'
“In the circuit court of Newton county, Missouri, May term, 1889.
“The grand jurors of the state of Missouri duly summoned from the body of the county of Newton, being duly empaneled, charged and sworn as such at the May term of the circuit court to inquire within and for Newton county, Missouri, A. D. 1889, upon their oaths present that heretofore on or about the eleventh day of April, 1887, one Moses W. Clay did unlawfully, feloniously obtain from Eliza and Mathias Splitlog with intent to cheat and defraud them, the said Eliza Splitlog and Mathias Splitlog, a certain valuable thing, to-wit, a certain option and power of attorney in words and figures substantially in words and figures, to-wit:
“ ‘ This agreement made and entered into on this twelfth day of March, 1887, by and between Mrs. Eliza Splitlog and her husband, Mathias Splitlog, temporarily of the county of McDonald, state of Missouri, parties*576 of the first part, and Moses W. Clay, of Newton county, state of Missouri, party of the second part, witnesseth: The said parties of the first part, who formerly resided at Wyandotte, Kansas, own in the right of said Mrs. Eliza Splitlog certain real estate and land situated in Wyandotte county, Kansas, bounded bylines commencing ten (10) poles north of the northeast corner of the southeast quarter of section sixteen (16), township eleven (11), range twenty-five (25), and running thence eighty (80) poles, thence south one hundred and forty (140) poles, thence east eighty (80) poles, thence north one hundred and forty (140) poles, to the place of beginning, containing seventy-one (71) acres, more or less, excepting, however, the right of way of the Union Pacific Railway Company across the same.
“ ‘That the said parties of the first part desire to sell and convey said property to the said party of the second part, or his assigns, for the price and sum of eight hundred dollars per acre.
“ ‘That, for and in consideration of one dollar, paid by the said party of the second part to the parties of the first part, who .acknowledge the receipt thereof, the said parties of the first part hereby contract, agree and covenant to give' and do hereby give and convey unto the said party of the second part the right, license, privilege and option for himself and assigns to buy and become the purchaser or purchasers and vendee or vendees of the said property at any time within one year from said date at and for the said price and sum of eight hundred dollars per acre for the said tract or parcel of land and estate or any part thereof, which price by the election of the said party of the second part or his assigns, or to avail himself or themselves of the said license or .option or any part thereof, shall be paid and delivered to the said Mrs. Eliza Splitlog, wife of the said Mathias Split-log, and the said option may be devisable and severable and of different dates, and relate to different portions*577 of said property at the discretion of the said party of the aforesaid second part. That, for the purpose of expediting the sale and conveyance on one hand and purchase on the other, the said parties of the first part do make, constitute and appoint said party of the second part their true and lawful attorney, agent and attorney in fact for them, and in their name and stead to sell and confirm unto any assignee or assigns of this contract the option hereby contracted in and all of the aforesaid property for the price and sum of eight hundred dollars per acre, and in their names and as their act and deed to sign, execute, acknowledge and deliver such deed or deeds or any part thereof with such clauses, agreements, covenants of warranty as the said party of the second part shall see fit, hereby ratify and confirm all of such deeds, and covenanting with them will, at the request and cost of the vendee, make, execute and deliver all such further acts, deeds, conveyances, assurances for the further and more practical granting and confirming of or any part of said premises to the said purchaser or purchasers and grantees as may or shall be desired and requested of the parties of the first part.
“ ‘ In testimony whereof the said parties of these presents have hereunto set their hands and seals the date first above written.
his
“ ‘Mathias X Splitlog,
mark
her
“ ‘ Eliza X Splitlog.’ ”
mark
“All and singular by means and by use of a trick, fraud and deception and by false and fraudulent representations, statements and pretenses contrary to the statutes in such cases made and provided, and against the peace and dignity of the state of Missouri.
“R. F. Clabk,
“Prosecuting Attorney of Newton county, Mo.”
I. The indictment before us is bottomed on section 1561, Revised Statutes, 1879, 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 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 bogus check, or by any other written or 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 less than two 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 statutes,” etc.
It only requires a very cursory examination of the statute, and a very cursory comparison of it with the indictment, upon which the trial in this cause was had, to determine that that indictment does not conform to the section on which it is drawn in several particulars: (1) It fails to copy the prescribed statutory form. (2) It does not, in compliance with that form, charge that the defendant obtained the “property" of Eliza Splitlog and Mathias Splitlog.
II. Again, the option contract set out in the indictment, as “ a certain valuable thing,” recites that the parties of the first part, husband and wife, own certain real estate in the state of Kansas in the right of Mrs. Eliza Splitlog, etc. At common law the contract of a feme covert as to her real estate was wholly void. The only way whereby her land could be conveyed was for instance by levying a fine, etc., in which she joined with her husband and was privily examined (2 Black. Com. 351, 355) in a manner similar to her acknowledgment of a deed in modern times.
But in the indictment here there is no mention made of any acknowledgment or of any similar ceremony having occurred as to the instrument in question. In the absence of any showing to the contrary it will be presumed that the common law prevails in a sister state.
But, apart from any question of acknowledgment, the agreement of the wife as to land held simply in her own right is not enforceable at common law, whether in making' it she joins with her husband or not. On this point Bishop remarks: ‘ Though the statutes authorize femes covert to convey their lands, and this authority ought fco be construed, to comprehend everything properly belonging to the contract of actual sale, yet it does not qualify them to enter into a valid executory agreement to sell; for a prior agreement to sell is not an essential part of the actual selling. * * * No executory agreement to convey, formal or informal, with or without the concurrence and joinder of the husband, will bind the wife. Not even a court of equity will give such an agreement effect, by decreeing its fulfillment against her.” Bishop or Mar. Women, sec. 601. To the like effect, see Shroyer v. Nickell, 55 Mo. 264 and cases cited; 7 Cent. Law Journal, 182, and cases cited; Atkison v. Henry, 80 Mo. 151, and cases cited.
In Purcell v. Goshorn, 17 Ohio, 105, Avert, J., observed: “No precedent, as it is supposed, can be found of a decree against a feme covert to convey lands held by descent, or by the usual conveyance, upon the ground of her having agreed to convey or her having executed a defective conveyance, whether upon a full consideration paid or not.”
‘ Now, if a married woman could not be compelled to specifically perform her written agreement to convey her real estate to which she holds but a fee-simple title, it logically follows that her option contract, even though acknowledged by herself and husband, would possess no validity, and therefore could in no sense be regarded as “ a valuable thing f even if those words could be held as the legal equivalent of the word “property.” So that upon the face of the indictment it appears that the
Indulging, then, the presumption before mentioned of the prevalence of the common-law rules in the state of Kansas, in the absence of any allegation in the indictment to the contrary, it must be held that the power of attorney, also, possesses no validity for the additional reason mentioned. Of course, any lack of necessary allegation in the indictment on the points discussed could be supplied neither by intendment nor by evidence aliunde.
III. The indictment being thus fatally defective, considered with reference to the section upon which it is based, is of course equally or more defective, considered with reference to section 1335, Revised Statutes,
IV. Moreover, after much consideration we have determined that the form given in section 1561 can no longer be upheld as constitutional. That form, as it stands, violates in all essential particulars section 22 of article 11 of our constitution, commonly called the Bill of Rights, in that it fails to inform the accused of “the nature and cause of the accusation.” This, an indictment drawn according to the form laid down in section 1561 signally fails to do.
An indictment under our statutory criminal procedure means just what it did at common law. The legislature may change it in form ; but cannot change the substance of its material averments. State v. Meyers, 99 Mo. 107. We, therefore, feel constrained to rule that State v. Fancher, 71 Mo. 460, and cases subsequently conforming thereto, shall no longer be followed. The authority of that case was greatly shaken by that of State v. Crooker, 95 Mo. 389, wherein it was held, contrary to the letter of section 1561, that in order to the validity of an indictment drawn on that statute it was indispensable that the specific property obtained should be stated. Of course it is no more necessary specifically to describe the property obtained than to designate the false pretense by which that property was
In that case, when discussing the constitutional right aforesaid of the accused, we quoted with approval from an eminent author, where he observes: “The doctrine of the courts is identical with that of reason, namely, that the indictment must contain an allegation of every fact which is legally essential to the punishment to be inflicted. This doctrine pervades the entire adjudged law of criminal procedure. It is made apparent to our understandings, not by a. single case only, but by all the cases. Wherever we move in this department of our jurisprudence we come in contact with it. We can no more escape from it than from the atmosphere which surrounds us.” 1 Bishop, Crim. Proc., sec. 81. And elsewhere the learned author observes: “The right of the accused person to have every element of his supposed crime—in other words, every individual thing which the law has specified as constituting any part of the foundation for its punishment set down in allegation in the indictment—is secured in this country by constitutional guaranties.” “The United States constitution provides as to crimes against the general government that in all criminal prosecutions the accused shall enjoy the right * * * to be informed of the nature and cause of the accusation, * * *. More or less nearly in • these words are provisions in the constitutions of other states. Put the ‘nature and cause’ of an accusation are not stated where there is no mention of the full act or series of acts for which the punishment is to be inflicted. * * * There can be neither indictment nor information except in writing, which to justify the whole punishment must specify the whole crime.” “ Wisely, therefore, the law requires the allegation to be full. As already shown, every fact which is an element in a prima facie case of
Controlled by these considerations and pursuing the same course pursued by us in the following cases; State v. Hayward, supra; State v. Crooker, 95 Mo. 389; State v. Horn, 93 Mo. 190; State v. McChesney, 90 Mo. 120, we shall reverse the judgment and discharge the defendant.