State v. Vorback

66 Mo. 168 | Mo. | 1877

Norton, L

— Defendant was indicted at the November term, 1873, of the Chariton county circuit court, for obtaining goods under false pretenses. He was tried at the November term, 1874, and convicted, and, on his motion, a new trial was awarded. He was again placed upon his trial at the November term, 1875, which resulted in his conviction, with punishment assessed to two years imprisonment in the penitentiary. A motion to arrest the judgment, on the ground that the indictment was insufficient, was sustained by the court, and from this judgment the State has appealed to this court.

The indictment alleges in proper form that defendant made to Henry L. Gaines and James Lonchein, who were partners in business, the following false representations “ that he, the said Christian Vorback, was about to ópen a general store in the town of Hawn, in Livingston county, Missouri; that he, the said Christian Vorback, had, a short time previous thereto, met with one Samuel W. Spencer, who was the traveling salesman for the said Henry L. Gaines and James Lonchein, and that Samuel had solicited his custom for said co-partnership ; that he, the said Samuel Spencer, had examined into and had satisfied himself as to his, the said Christian Vorback’s, solvency and ability to pay his debts, ■ and that said Spencer had directed him, the said Vorback, to come down to Brunswick before purchasing elsewhere, and if the liquors, goods and prices therefor were not satisfactory to him, that he, the said Spencer, or the said firm of Henry L. Gaines, would pay his expenses both ways; also, that he, the said Vorback, owned a good farm and several buildings and houses in Livingston county, Missouri; that he, the said Vorback, was solvent and able to pay his debts and engagements, and that he did business and kept his bank account with a bank in the town of Chillicothe, Missouri, which he termed Hr. I. B. Bell’s bank; that he had money on deposit at said bank; that he kept a bank account at said bank; that he kept a bank account at the bank known as the Chillicothe Savings Association, in Chillicothe, Missouri; that he had money on deposit at said bank, at said time, and kept money on deposit at all times at said bank.”

One objection made to the indictment is, that a portion of the alleged false pretenses were made concerning some future thing the defendant -was to do, viz : to open a general store in the town of Dawn. It is not urged by counsel for defendant that the other representations made by defendant, as to his being the owner of a farm in Livingston county, and other real estate, as to his having money on deposit in the banks of Chillicothe, were not such false pretenses as came within the meaning of the statute on which the indictment was framed. A false pretense is a representation of some fact or circumstance calculated to mislead, which is not true. (2 Bishop Grim. Law, Sec. 397.)

In the ease of The State v. Evers, 49 Mo. 542, Judge Adams speaking for the court, says : “ That the essence of the crime of obtaining money or property, by false pretenses is, that the false pretense should be of a past event, or of a fact having a present existence, and not of something to happen in the future, and that the prosecutor believed the pretense was true, and that, confiding in the truth of the pretense, and by reason thereof, he parted with his money or property.”

Admitting that the alleged representation, made by defendant to Gaines, that he was about to open a general-store in the county, was not in legal contemplation a false pretense, because it related to some thing to be done in the future, it by no means follows that the indictment was so vitiated thereby as to render it invalid. It may be treated either as surplusage or mere inducement to other allegations, which set up and charge such pretenses as are in law false pretenses. In an indictment for obtaining goods or money under false pretenses, when several such pretenses are alleged, the proof of any one will sustain the indictment. The rule, as laid down in' 2 Bish. Crim. Law, Sec. 399, is stated thus: “There need be only one false pre-• tense, and though several such pretenses are set out in an ■ indictment, yet if any one of them is proved, being such as truly amounts in law to a false pretense, the indictment is sustained.” That the other pretenses set out in the indictment, alleged to have been made by defendant, are such false pretenses as our statute contemplates, we have no doubt.

It is, however, said that the indictment is defective in not alleging that Gaines, to whom they were made believed thorn to be true. ¥e think that this is sufficiently averred, the allegation being that “ the said Gaines then and there believing the aforesaid false pretenses and representations, so made as aforesaid by said Yorback, and being deceived thereby, was induced, by reason of the false pretenses and representations, so made to deliver, &c.” The allegation is made in substantial compliance with the rule as laid down in State v. Evers, supra.

Ye think the indictment was sufficient to support the judgment. Judgment reversed, and cause remanded.

Reversed