170 Mo. 346 | Mo. | 1902
The defendant was indicted, convicted, and his punishment fixed at four years in the penitentiary, under section 3564, Revised Statutes 1889, for obtaining $550 from the Hickory County Bank, through its president, W. H. Liggett, by means of false representations and pretenses.
The indictment charges that Walter Hubbard on or about April 22, 1898, at the said county of Hickory and State aforesaid, did, then and there, unlawfully, feloniously and designedly, with intent to cheat and defraud a certain private bank, organized under and by virtue of the laws of Missouri, to-wit, the Hickory-County Bank, falsely pretend and represent to one AY. H. Liggett, the president of said bank, that the said
Several objections are urged against the indictment. It is said that it is bad'for the want of an allegation that defendant represented the value of the mortgaged cattle, or that they were good security for the loan, or unincumbered, and the ease of the State v. Barbee, 136 Mo. 440, is relied upon as sustaining that contention. But there is a very material difference between the facts in that case, and the case at bar, in this; in that case, the indictment alleged that the defendant, in order to cheat and defraud the Farmers’ Bank of Polo out of the, sum of three hundred and twenty-
It is also said that the indictment is invalid in that the description of -the cattle therein is so indefinite that it deprived defendant of his constitutional right to be informed of the nature and cause of the accusation. In a word, the complaint is that because the indictment did not give a certain and specific description of the steer cattle, it is insufficient. We have already held that the description was sufficient to constitute a false pretense under the statute, and if we are right in that, surely the pleader was not required to state more.
Moreover, as the false representation was that defendant was at the time of making it the owner of twenty-two steer cattle, the pleader could not give any other or more definite description, as he was required to state the false pretense which defendant had used to procure the money and not another. Had he set forth
Neither can defendant complain that tbe indictment does not more particularly describe tbe steer cattle since it is bis own description, nor does it lie in his mouth to find fault with tbe bank’s officers because they did not require and exact of him a more specific false pretense but trusted him and loaned him tbe money on tbe false representation which be saw fit to make. He can not be allowed to say, “You trusted me on this representation, and because it was not specific I bad a right to swindle you. ”
This pretense or representation does not fall within tbe class of cases in which it has been ruled that a pretense that is absurd on its face, or irrational, is not within tbe statute. [State v. Cameron, 117 Mo. 648; Buckalew v. State, 11 Tex. App. 352; Com. v. Grady, 76 Ky. 285.]
Thus tbe false representation that defendant bad money on deposit in bank and bis check would be paid on presentation, was held sufficient. [Smith v. People, 47 N. Y. 307.]
And it was further held that tbe court properly refused to charge tbe jury that tbe pretense must appear in the indictment to be such as could not be guarded against by an exercise of common sagacity and prudence.
In State v. Fooks, 65 Iowa 196, tbe representation by defendant was that bis brother was soon to arrive in Iowa Falls and bring with him money for defendant without specifying tbe amount, and this was held to amount to a pretense that be bad, tbe money, and was sufficient. Numerous other- cases might be cited to show that tbe pretense that defendant bad twenty-two steer cattle was a sufficiently definite false statement to sustain an indictment.
But it is obvious that the judge who wrote that opinion was not discussing at that time the sufficiency of Stowe’s alleged false representation that the two certain horses “were free from all liens or incum-brances,” but was considering the charge of the grand jury, “that in truth and in fact he the said Aretas Stowe was not then and there the real, legal and absolute owner of said two horses first above described but in truth and in fact there was a lien and an incum-brance on said two horses, that is to say, there was on the . . . "day of September, 1892, a legal, valid and subsisting mortgage, unpaid and unsatisfied, on the two horses, the name of the mortgagee and mortgagor being unknown to these grand jurors, which he, said Stowe well knew,” etc.
Proceeding the court says: “In the case at bar, the facts which constituted the lien and incumbrance on the horses are not so stated as to notify defendant and apprise him of what he was to meet at the trial. [State v. Trisler, 31 N. E. 881.] The allegation in regard to the lien and incumbrance amounts to no more than an untraversable legal conclusion, the mere inference of the pleader; but facts should have been alleged in order to enable the court to determine whether the mortgage was a valid lien.”
The gravamen of the charge in that case was the false statement that there, was no lien on the horses, but when the grand jury came to charge that there was a lien, it contented itself by merely stating that there was a mortgage, but that “the names of the mort
It is also contended that the indictment is bad because it only alleges that Liggett “was induced by the false pretenses to loan the said Walter Hubbard” the money, and does not expressly allege that he did lend it to him. In State v. Phelan, 159 Mo. 122, an indictment which charged the defendant with obtaining horses by false and fraudulent representations by reason whereof the owners of the horses “were induced to then and there sell and deliver to said defendant said horses,” was held bad upon the ground that there was no distinct averment that the owners of the horses did in fact sell them to defendant. The court said: “The allegation should have been, ‘were induced to sell and did sell and deliver’ to defendant said
Por these considerations we must hold the indictment to be invalid. The judgment is reversed and the cause remanded.