31 Mo. 413 | Mo. | 1861
delivered the opinion of the court.
This was an indictment under section fifty-one, (R. C. p. 582.) for obtaining by false pretences the signature of one George Scott, to an instrument of writing. There are two counts; the first, after setting out the several pretences, charges that by such false pretences, a deed of forty acres of land, lying in the county of Cedar, was obtained, and that by such false pretences the said Scott was induced to trade and barter land to the said defendant, being in said county, for lands in Iowa. There is no description of the instrument, other than by designating it in general terms as a deed, neither its date, description, or numbers of the land conveyed, names of persons executing it, (except by inference,) nor any of its contents, except as before stated, are set out or referred to in this count of the indictment. There is no averment that the prosecutor owned or had any interest in the land conveyed ; nor does it appear other than by a very liberal intendment that Scott had affixed his signature to any instrument of writing whatever. For aught that appears, it may be void upon its face; may create no liability, and be apparently of no value. It may be such that it could by no possibility prejudice any one in relation to his estate. And although it may not be necessary to the offence that the party signing his name should actually suffer loss or injury, yet it does not appear from any allegation concerning the instrument that it could or might work injury to the person from whom it was obtained. Can it be said, then, that the facts constituting the offence attempted to be charged, are averred in this count ? that they are set forth with as much
At common law, the indictment is clearly defective. A recent statute of this state, however, copied from an English statute, (14 & 15 Vict.) has greatly relaxed the rules of pleading in respect to a certain class of indictments, (including that under consideration,) and it seems now to be sufficient to describe the instrument by any name or designation by which the same may be usually known, or by the purport thereof, without setting out any copy or fac simile thereof, or otherwise describing the same or the value thereof. (Prac. Cr. C. art. 4, § 28.) Whether under this provision the first count would be good it is unnecessary to determine, as that indictment is clearly bad on other grounds.
The second count, after averring the several pretences, sets out hcec verba?, an instrument in the usual form of an obligation to convey certain real estate therein described, purporting to be executed by one Starnes to Willis; assigned by Willis to Scott, by Scott to the defendant, and by the latter to one Valentine. It avers that under such false, felonious and fraudulent representations of the said Peacock, he, the said Scott, was induced to assign and deliver to the said Peacock a certain bond to land, (which is set out as before stated,) and that the defendant, with a felonious intent to cheat said Scott, feloniously and disgracefully, and by the false pretences aforesaid, obtained said bond assigned as aforesaid, &c.
In both counts the false pretences are thus negatived, namely, “whereas in truth and in fact the said land was not as represented by the said Amos Peacock.” In this respect, the indictment is defective. It is not sufficient to charge that the defendant falsely pretended, &c., setting forth the means used, and then to aver that by means of such false pretences he obtained the property, but such of the pretences as the pleader intends or expects to prove on the trial were
Judgment affirmed;
