159 Mo. 230 | Mo. | 1900
At the October term, 1899, of tbe circuit court of Lincoln county, defendant was indicted for obtaining a promissory note for $36.30, from one John Schloeman, dated at Troy, Missouri, on May 2, 1899, made payable to the order of T. J. ITamlett six months after date, and signed by said Schloeman, by means of false and fraudulent pretenses.
At tbe same term of tbe court at which tbe indictment was found defendant demurred thereto for tbe following grounds of objection, to-wit.
Eirst. Because tbe indictment does not follow tbe form prescribed by said statute.
Second. Because said statute is unconstitutional and void.
Third. Because tbe indictment fails to show that any property or thing obtained by defendant as charged in said indictment bad any value.
Fourth. Because it is shown by tbe indictment that tbe property or thing obtained or charged to have been obtained by defendant was obtained by reason of a contract or promise to be executed or carried out in tbe future by defendant.
Tbe demurrer wtas sustained, and judgment rendered thereon in favor of defendants. Tbe State appeals.
Tbe defendant is not represented in tbis court, but judging from tbe objections taken to tbe indictment by tbe de
But however this may be, it makes no difference under what particular section of the statute the indictment may have been drawn, nor the infirmities of such section, or of the indictment thereunder, provided it be good under some other section of the statute, which is valid. Section 3564, Revised Statutes 1889, provides that “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.......from any person any money, personal property, right in action or other valuable thing or effects whatsoever .........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.” Now the indictment charges, that “defendant with the intent then and there unlawfully and feloniously to cheat and defraud one John Schloeman, then and there unlawfully, knowingly and feloniously did falsely and fraudulently represent, state and pretend to the said John S. Schloeman, that he, the said John Vandenburg, was then and there the authorized agent and representative of the New England Mutual Life Insurance Company of Boston, Massachusetts, a corporation duly organized, incorporated and existing under the laws of the State of Massachusetts, and that he, the said John Vandenburg, had full right and authority from said corporation then and there to transact the business of life insurance for and on behalf of said corporation and to sell, and to contract for the sale of life insurance policies of said corporation, and to collect and receive the premiums thereon for and on behalf of said corpor
“ ‘$36.60 Troy, Mo., May 2d, 1899.
“ ‘Six months after date I promise to pay to the order of T. J. Hamlett thirty-six 60-100 dollars at Troy, Mo., with interest at the rate of 8 per cent after due until paid, value received. John Schloeman.’
“And the said John Vandenburg, by means and by use of the said false and fraudulent representations, statements and pretenses, so made as aforesaid, then and there unlawfully, knowingly and feloniously did obtain from him, the said John Schloeman, the promissory note aforesaid, the property of him, the said John Schloeman, then and there' being, with intent then and there, unlawfully and feloniously to cheat and defraud him, the said John Schloeman, of the same; whereas, in truth and in fact, the said John Vandenburg was not then and there the authorized agent or representative of the said corporation, and he, the said John Vandenburg, did not have any right or authority then and there to transact the business of life insurance for or on behalf of said*236 corporation, or to sell, or to contract for the sale of life insurance policies of said corporation or to collect or receive the premiums thereon, for or on behalf of said corporation in any manner whatsoever, and he, the said John Vandenburg, was not then or at any time sent to the said John Schloeman by the said corporation for the purpose of selling to him, the said John Schloeman, a policy of life insurance of said corporation, and he, the said John Vandenburg, then and there well knew that he, the said John Vandenburg, was not then and there the authorized agent or representative of the said corporation, and that he, the said John Vandenburg, did not have any right or authority then and there to transact the business of life insurance for or on behalf of said corporation, or to sell or to contract for the sale of life insurance policies of said corporation, or to collect or receive the premiums thereon, for or on behalf of said corporation, in any manner whatsoever, and that he, the said John Vandenbrirg, was not then -or at any other time sent to the said John Schloeman by the said -corporation for the purpose of selling to the said John Schloeman a life insurance policy of said corporation; against the peace and dignity of the State.”
It will thus be seen that the indictment is in almost the exact language of the statute.
The false pretenses are set out in detail, upon which it is charged defendant relied, that they were false and that defendant knew them to be so, and made feloniously, and willfully and with the intent to defraud 'Schloeman who believed the statements to be true, and relying upon them executed the note and delivered it to defendant.
It is incorrect to say tha^t the indictment fails to show that the note alleged to haveNeen obtained by defendant as charged, had no value, for after alleging that the note was a valuable thing, it avers it to be “of the value of thirty^six and
The further point is made that the note charged to have been obtained by defendant was obtained by reason of a contract or promise, to be executed or carried out in the future by defendant, and that by reason thereof defendant was not guilty of any offense. It may be conceded that a false representation or promise as to a future event, is not a false pretense within “the meaning of the statute; but, “where a false representation' of an existing or past fact, calculated to induce the confidence which led the prosecutor to part with his property, is accompanied by or blended with a promise to do something in the future, this is a sufficient false pretense, although the promise, as well as the false statement of fact, operated upon the mind of the prosecutor in inducing him to part with his property.” [12 Am. and Eng. Ency. of Law (2 Ed.), 812.]
In Strong v. State, 86 Indiana 208, it was held that an indictment which charged that the defendant, on, etc., at, etc., by falsely pretending to be a member of a certain Masonic lodge in Ohio, that he was on his way to his father-in-law’s funeral, and was out of money to travel and by exhibiting a forged receipt from the Ohio lodge for dues, obtained from another lodge of Masons a sum of money named, upon a promise to re-pay the same, with intent to defraud said other ^lodge, knowing said pretenses to be false and the receipt to be forged, was good on motion to quash.
In course of the opinion it is said: “We think the count under consideration made it sufficiently obvious that the most material and most important representations made by the appellant were as to facts assumed to be then existing, and that the appellant’s promise to re-pay the money was only
In Thomas v. State, 90 Ga. 437, it is held that the offense of cheating and swindling may be committed by a false representation of a past or existing fact, although a promise be also a part of the inducement to the person defrauded to part with his property.
In the case of State v. Fooks, 65 Iowa 196, it is held, that where a person borrowed money on the false pretense that his brother was to arrive with money for him, coupled with a promise to use it in payment of the sums borrowed, amounted to a pretense that he had the money as an existing fact, and that he was guilty of obtaining the money under false pretense.
So in State v. Dowe, 27 Iowa 273, it is held, that a promise combined with a false pretense does not take away the criminal character of the act. The same rule is announced in State v. Jackson, 80 Mo. 98; Commonwealth v. Wallace, 114 Pa. St. 405; State v. Thaden, 43 Minn. 325; State v. Gordon, 56 Kan. 64; State v. Nichols, Houst. Cr. Cas. (Del.) 114.
Bishop in the eighth edition of his work on Criminal Law, volume 2, section 424, in speaking of this character of offense, says: “It would be difficult to find in actual life any case wherein a man parted with his property on a mere representation of fact, whether true or false, without an accompanying promise.”
Now while by the terms of the contract defendant was not to deliver to Schloeman the policy of insurance for some
Our conclusion is that the indictment is good, and that the demurrer thereto should have been overruled.
The judgment is reversed and the cause remanded.