75 Mo. 171 | Mo. | 1881
Appellant and one Turner were jointly indicted at a special term of the Randolph circuit court held in June, 1881, and appellant was convicted and sentenced to imprisonment in the penitentiary for a term of three years, on the following indictment, omitting the caption : “ T. G. Porter and N. R. Turner, late of the county of Randolph aforesaid, on the 25th day of May, 1881, at Moniteau township, in Randolph county, and State aforesaid, within the jurisdiction of said circuit court, with intent to cheat and defraud, did unlawfully and feloniously obtain from William O. Williams a certain valuable thing, to-wit: a promissory note for the sum of $750, and of the value of $750, executed by the said William C. Williams and indorsed in blank across the back by the said William C. Williams, by means and by use of certain false and fraudulent representations and statements and false pretenses, contrary to the form of the statute in such, cases
The evidence for the State tended to prove that defendant and Turner went to the prosecutor’s house and represented themselves as agents of the Western Medical works of Indianapolis, Indiana, authorized to appoint agents to vend its medicines, and induced the prosecutor to accept an agency, and sign what the latter supposed to-be a contract by which he was to receive a certain amount of medicines to sell on commission, etc., which, he afterward discovered, was a promissory note executed by, payable to, and indorsed by himself, and delivered to the defendant, for the sum of $750 ; that the defendant procured his signature to the note, by pretending to read what he-represented to be a copy of the same, but which was a different paper, imposing no such obligation on the prosecutor.
Section 1335 of the Revised Statutes, is as follows “ Every person, who, with intent to cheat or defraud another, shall designedly, by color 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 other valuable thing or effects whatsoever, and every person who sTiall, with the intent to- cheat and defraud, another, agree or contract with such other person, or his. agent, clerk or servant, for the purchase of any goods,, wares, merchandise or other property whatsoever, to be paid for upon delivery, and shall, in pursuance of such intent to cheat and defraud, after obtaining possession of any such property, sell, transfer, secrete or dispose of the same, before paying or satisfying the owner or his agent, clerk or servant therefor, shall, upon conviction thereof, be. punished in the same manner, and to the same extent as for feloniously stealing the money, property or thing so obtained.”
Section 1561, reads as follows :: “ Every person who,.
Under this section the indictment' was found, and defendant’s counsel insist that he should have been indictéd, if at all, under section 1385. The evidence tended to prove that defendant had, - by a trick, a false pretense, and a fraudulent representation, procured the signature and delivery by the prosecutor to the defendant, of a note, executed by, payable to., and indorsed by the prosecutor for the sum of $750.
At common law mere choses in action, as bonds, bills and notes, were not goods whereof larceny could be committed, as being of no intrinsic value, and not importing any property in the possession of the person from whom taken. Russ. on Crimes, 69; People v. Loomis, 4 Denio 382; Wilson v. State, 1 Port. 120. Our statutes have not changed the common law in this respect, except as to notes which have been delivered to the payee by the maker, or indorser thereof. They are, in the hands of the payee, or indorsee, subjects of larceny. It follows, that the only punishment for obtaining a promissory note from its maker, by means of a false token, or other false pretense, is that prescribed for petit larceny, no matter what amount is expressed as payable in the note. At common law, the note in the hands of the maker was not the subject of larceny, and for stealing such an instrument the offender could only be punished for stealing the paper on which it was written. “ There may be larceny of paper, however slight its valúe, since it has some value, and if the paper is written on, still its value is not entirely destroyed.” Bishop Crim. Law, § 768. “ The distinction in England, therefore, is, that if a chose in action is so defective as to be void, or if a promissory note itas been paid, an indictment may be maintained for stealing the price of the paper on which it is written.” Ib. “ This article may be worth-less than the smallest sum known to the law.” § 767.
Eor obtaining any money, property or valuable thing whatever, by means mentioned in section 1561, the punishment, on conviction, without regard to the value of the thing so obtained, is imprisonment in the penitentiary for
The case of the People v. Loomis, 4 Denio 382; Wilson v. State, 1 Port. 120; Bishop Crim. Law, and other cases, and text books have been cited in support of the proposition that the note in question was not the subject of larceny, either at common law or under statutes which make-it larceny to steal a written instrument, “by which any right or title to property, real or personal, shall be created, acknowledged, transferred, defeated, discharged or diminished, or which induce a right of action.” Such was the statute of New York under which the People v. Loomis was decided, in which it was held that: “The written instrument taken by theft or robbery must not only have been made and executed in due form and manner, but must also have remained unsatisfied and in full force, so that when taken it was an effective and valuable security. The instrument, although complete in form-and signature, and ready to be issued, or delivered according to its design, could not, while in that state, be the subject of robbery or larceny.”
These cases, unquestionably .sound in principle, are not applicable to the one at bar. Section 1561 does not declare what property shall be the subject of larceny. It does not declare the offense therein defined to be larceny. It is a statutory crime, and the section was obviously enacted in view of the law as settled by the class of cases-above cited, and to provide an adequate punishment for a-crime as. heinous as larceny, but which was not larceny-
The note obtained was in form a non-negotiable promissory note, and while open to any defense the maker might have against it in the hands of any one holding it by indorsement or otherwise, was still of some value as a promissory note. Contingencies might have occurred which would have enabled the holder, even the accused, to collect the amount. If the maker had died leaving the note outstanding, it would have been impossible to prove the fraud by.which it was obtained.