112 Mo. 585 | Mo. | 1892
Lead Opinion
I. , The indictment .in this- case is drawn under' section 3826, Revised Statutes, 1889, and it charges that defendants, George Height and Isaac . Levy, at the county of Clark, did' unlawfully and feloniously attempt to obtain from John Mantle the sum of $3,500, of the goods and chattels of said John Mantle, “by means and by use of a cheat, and a fraud and a trick and deception and false and fraudulent representation and false pretense and a confidence game,” with the felonious intent to cheat and defraud the said John Mantle.
We do not concur in the contention that this charge is not sufficiently definite and explicit to inform defendants of -.the nature and cause of the accusation,
II. The court admitted evidence of another transaction, for the purpose of showing defendants’ intent.
The evidence tended to show that in September, 1891, the two men jointly indicted with defendant induced John Mantle to show them his farm in Clark county, with a view, on their part, of purchasing it; that while going around the farm in a wagon they came across defendant in a fence corner, who got up and said, “Hello, Tanks,” to which the two confederates replied by calling him “Texas,” all pretending, however, to be strangers to each other; defendant said he was hunting a sister, who had married a man by the name of Hamburg, in order to pay her her part of $17,000, which they had inherited from their father, at the same time opening a valise he had, and exhibiting five or six bunches of money, or what looked like money. Mantle said he knew Hamburg, and would show defendant where he lived. Defendant then said he had had bad luck lately; that the landlord where he had stopped had won $1,000 from him; the two confederates seemed to be much interested and inquired how he had lost the money; defendant pulled out four cards, with which all except Mantle played, and they pretended that the two confederates had won $3,500 from defendant; they then asked Mantle to play, and though objecting at first he was induced finally to turn a card or two, whereupon they claimed he had won $3,500, and defendant took out a roll of bills and commenced to count the money, laying a $20 bill in Mantle’s hand, but immediately took it back, remarking that if the latter could show he could have paid if he had lost he would then pay the $3,500;
The state introduced Stephen Trice, as a witness, who was permitted, over objections of defendant, to testify that in June, 1891, the same men approached him on his farm in Clinton county, Missouri, in the same manner they had Mantle. His story was similar in many respects. He got $3,500 in cash, however, and took it to the men on the road, where the game of cards was played, and where they obtained his money, but exactly how, he did not seem to know. He was frightened by their conduct and conversation; some of the men were masked, and after getting his money one of them threw a mask of some sort over his face, after which he became unconscious for awhile.
The general rule, that in a prosecution of this sort acts of a defendant similar to the one for which he is being tried are admissible for the purpose of showing the intent with which the act charged was done, is not denied. But it is earnestly insisted that the transaction detailed by Trice is not similar to the one detailed by Mantle, in that the former amounted to robbery, while the latter amounted to an attempt, if any crime at all, to obtain money by false pretenses and a confidence game.
While the witness Trice called the act in his case robbery, we do not think that defendant could have been convicted of that crime on Trice’s testimony.
At the time of the admission of this evidence, and afterwards by an instruction, the court specifically told the jury its object, and how far and for what purpose it should be considered by them in making up their verdict. , ,
III. The intent to cheat and defraud constitutes the main element in crimes of the character charged in this indictment, and the court erred in wholly omitting that element in the instructions to the jury. State v. Norton, 76 Mo. 180; State v. Myers, supra. And for this error the judgment will be reversed and the cause remanded for a new trial.
Dissenting Opinion
We dissent solely on the ground of the invalidity of the indictment, and, therefore, are for a simple reversal of the judgment.