State v. Lewis

26 Kan. 123 | Kan. | 1881

The opinion of the court was delivered by

Horton, C. J.:

The appellant was tried and convicted of obtaining money by false pretenses, and from the judgment of the district court appeals. Many errors are alleged, several of which raise the question of the sufficiency of the information. Only one of these however it is necessary, in our opinion, to discuss, as that one is fatal to the information. Section 94 of the act of crimes and punishments, under which the information is drawn, reads: “ Every person who, with intent to cheat or defraud another, shall designedly, by means of any false token or writing, or by any other false pretense, obtain the signature of any person to any written instrument, or obtain from any person any money, personal property, right in action, or any 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.” The purpose of the information was to charge the appellant with the offense of obtaining money by a false pretense from W. S. Burton, agent of Messrs. Lebold, Eisher & Company, copartners, doing business at Abilene, in the county of Dickinson, with intent to cheat and defraud said Lebold, Fisher & Company. It alleges that upon certain false pretenses of the appellant, Burton paid to the said appellant “the sum of $330, in bank check, money and bank draft,” then and there being the money, property and effects of Lebold, Fisher & Company; and also that upon false representations and pretenses of the appellant, said Burton paid and discharged certain liens and incumbrances, to the amount of $1,700, the same then and there being the money, property and effects of said Lebold, Fisher & Company. But nowhere in the information is it alleged that the appellant obtained any money, personal property, right in action, or any other valuable thing or effects whatsoever. It has often been held by this court, that while it is not necessary in an information or indictment to use the exact words of the statute in charging an offense; yet, other words conveying the same meaning must be employed. This raises the question whether the substitution of the word paid, as used in the information, is equivalent to the word obtained, in the statute. We think not. The crime defined in the statute is not that of making a false pretense, but the provision is directed against one who obtains something, or, in other words, who gets possession of something purposely, by effort, that is, by a false pretense. This being true, the information does not describe the offense, either in the exact words of the statute, or by the adoption of other words of substantially the same meaning with the words of the statute. The motion to quash the information ought to have been sustained, because no offense was charged therein; and the motion in arrest of judgment ought to have been sustained, because the facts as stated in such information do not constitute a public offense. (Kennedy v. State, 34 Ohio St. 310.)

The court below, in overruling the motion in arrest of judgment, intimated that if the objection commented on had been pointed out on the hearing of the motion to quash, the motion would have been at that time sustained. We suppose from this remark, that the court meant this objection was not specifically commented upon, as the motion to quash, in fact, does fully embrace this omission in the information. The objection having been included in the motion to quash, it is properly presented here in the exception to the overruling of such motion, as well as in the overruling of the motion in arrest of judgment. The court below, in overruling the motion in arrest of judgment, held also, notwithstanding the omission in the information that Lewis obtained anything of value, a liberal construction of the information would make it sufficient to charge the offense within the statute; or rather, sufficient to inform the defendant of the nature of the charge against him. Now there are certain well-known rules regulating pleadings in criminal actions which cannot be violated. Although the accused might, with his knowledge of the transaction, well understand the offense for which he was arraigned, if the information had merely stated that at a certain time and place he defrauded, by false pretenses, the prosecuting witness of moneys and property to the amount of $330, yet such a statement in an information does not conform to the provisions of the statute, nor to the rules adopted in criminal pleadings, and is wholly insufficient. The pleader may always have the statute before him in drawing informations, and we see no reason for extending the rule further, than that while the exact words of the statute in charging the offense need not be used, other words conveying the same meaning must be employed, if the exact words of the statute be omitted. There is no good reason why an offense charged in an information shall not be clearly set forth in plain and concise language according to the terms of the statute under which the information is drawn. To favor as liberal a construction of a criminal pleading as the district court intimates may be done, would in fact open the door to a disregard of the statute, and overthrow all the recognized rules governing criminal proceedings. There are additional minor objections to the information, pointed out in the brief of counsel for appellant, which seem to us should be corrected upon the filing of a new information, in order that the offense charged may be clearly set forth against the accused; but as all of these may be easily cured in a new information, we need only call the attention of counsel thereto.

The judgment of the district court will be reversed. The appellant will be returned from the penitentiary and deliv- . ered over to the jailer of Eussell county, to abide the order of the district court of that county.

Valentine, J., concurring. Brewer, J.:

I am inclined to think the information was sufficient, but I concur in the judgment of reversal upon other grounds, the principal one being the incompetency of certain of the jurors.