State v. Clay

• Decision Date: 02 June 1890
• Citation: 100 Mo. 571,13 S.W. 827
• Parties: STATE v. CLAY.
• Court: Missouri Supreme Court

13 S.W. 827

100 Mo. 571

STATE v. CLAY.

Supreme Court of Missouri.

June 2, 1890.

FALSE PRETENSES — INDICTMENT — CONSTITUTIONAL LAW.

1. An indictment under Rev. St. Mo. § 1561, for obtaining property by false pretenses, which substituted "valuable thing" for "property," in the form prescribed thereunder, and, after the recitals, concluded with a separate paragraph, beginning, "All and singular, by means and by use of a trick," etc., thus failing to connect the charge with what had gone before by proper words, is bad.

2. In an indictment for falsely obtaining an option of purchase and power of attorney, the fact that the instrument, which is copied in full, recites that "the said parties of the first part * * * own, in the right of said Mrs. Eliza Splitlog, certain real estate and land situated," etc., does not supply the lack of a charge that defendant obtained the "property," as required by Rev. St. Mo. § 1561.

3. Where the said instrument relates to lands situated in Kansas, and no showing is made to the contrary, the common law is presumed to prevail therein; and as by the common law a married woman's contract to convey could not be enforced, the option contract was neither "property" nor a "valuable thing."

4. It was also invalid because at common law a married woman's power of attorney was void, although executed jointly with her husband.

5. As the power of attorney was invalid, the indictment is not good under Rev. St. Mo. § 1335, which defines the crime of obtaining a written instrument, etc., with intent to cheat and defraud another.

Error to circuit court, Newton county; M. G. McGREGOR, Judge.

The defendant was tried under the following indictment:

"State of Missouri, County of Newton — ss.: In the circuit court of Newton county, Missouri, May term, 1889. The grand jurors of the state of Missouri, duly summoned from the body of the county of Newton, being duly impaneled, charged, and sworn as such at the May term of the circuit court to inquire within and for Newton county, Missouri, A. D. 1889, upon their oaths present that heretofore, on or about the 11th day of April, 1887, one Moses W. Clay did unlawfully, feloniously, obtain from Eliza and Mathias Splitlog, with intent to cheat and defraud them, the said Eliza Splitlog and Mathias Splitlog, a certain valuable thing, to-wit, a certain option and power of attorney, in words and figures, substantially in words and figures, to-wit:

"`This agreement, made and entered into on this 12th day of March, 1887, by and between Mrs. Eliza Splitlog and her husband, Mathias Splitlog, temporarily of the county of McDonald, state of Missouri, parties of the first part, and Moses W. Clay, of Newton county, state of Missouri, party of the second part, witnesseth: The said parties of the first part, who formerly resided at Wyandotte, Kansas, own, in the right of said Mrs. Eliza Splitlog, certain real estate and land situated in Wyandotte county, Kansas, bounded by lines commencing ten (10) poles north of the north-east corner of the south-east quarter of section sixteen, (16,) township eleven, (11,) range twenty-five, (25,) and running thence eighty (80) poles; thence south one hundred and forty poles, (140;) thence east eighty (80) poles; thence north one hundred and forty, (140,) to the place of beginning, — containing seventy-one (71) acres, more or less; excepting, however, the right of way of the Union Pacific Railway Company across the same. That the said parties of the first part desire to sell and convey said property

to the said party of the second part or his assigns for the price and sum of $800 per acre. That for and in consideration of $1 paid by the said party of the second part to the parties of the first part, who acknowledge the receipt thereof, the said parties of the first part hereby contract, agree, and covenant to give, and do hereby give and convey, unto the said party of the second part, the right, license, privilege, and option for himself and assignees to buy and become the purchasers or purchaser and vendee or vendees of the said property, at any time within one year from said date, at and for the said price and sum of $800 per acre for the said tract or parcel of land and estate, or any part thereof, which price, by the election of the said party of the second part or his assigns, or to avail himself or themselves of the said license or option or any part thereof, shall be paid and delivered to the said Mrs. Eliza Splitlog, wife of the said Mathias Splitlog, and the said option may be devisable and severable, and of different dates, and relate to different portions of said property, at the discretion of the said party of the aforesaid second part. That for the purpose of expediting the sale and conveyance on one hand, and purchase on the other, the said parties of the first part do make, constitute, and appoint said party of the second part their true and lawful attorney, agent, and attorney in fact for them, and in their name and stead, to sell and confirm unto any assignee or assigns of this contract the option hereby contracted in and to of the aforesaid property for the price and sum of $800 per acre, and in their names and as their act and deed to sign, execute, acknowledge, and deliver such deed or deeds, or any part thereof, with such clauses, agreements, covenants of warranty as the said party of the second part shall see fit, hereby ratify and confirm all of such deeds, and covenanting with them will, at the request and cost of the vendee, make, execute, and deliver all such further acts, deeds, conveyances, assurances, for the further and more practical granting and confirming of or any part of said premises to the said purchaser or purchasers and grantees, as may or shall be desired and requested of the parties of the first part. In testimony whereof the said parties of these presents have hereunto set their hands and seals the date first above written.

                                            his
                                   "`MATHIAS X SPLITLOG
                                            mark
                                          her
                                   "`ELIZA X SPLITLOG
                                         mark
                

"All and singular by means and by use of a trick, fraud, and deception, and by false and fraudulent representations, statements, and pretenses, contrary to the statutes in such cases made and provided, and against the peace and dignity of the state of Missouri.

                                      "R. F. CLARK,
                

"Prosecuting Attorney of Newton Co., Mo."

The trial resulted in the defendant's being convicted, and his punishment assessed at nine years' imprisonment in the penitentiary. He has appealed to this court.

W. Cloud and Adiel Sherwood, for plaintiff in error. The Attorney General, for the State.

SHERWOOD, J., (after stating the facts as above.)

1. The indictment before us is bottomed on section 1561, Rev. St. 1879, as follows: "Every person who, with intent to cheat and defraud, shall obtain, or attempt to obtain, from any other person or persons, any money, property, or valuable thing whatever, by means or by use of any trick or deception, or false and fraudulent representation or statement or pretense, or by any other means or instrument or device, commonly called the `confidence game,' or by means or by use of any false or bogus check, or by any other written or printed or engraved instrument, or spurious coin or metal, shall be deemed guilty of a felony, and, upon conviction, be punished by imprisonment in the penitentiary for a term not less than two years. In every indictment under this section it shall be deemed and held a sufficient description of the offense to charge that the accused did, on ______, unlawfully and feloniously obtain, or attempt to obtain, (as the case may be,) from A. B., (here insert the name of the person defrauded,) his or her money or property, by means and by use of a cheat or fraud or trick or deception, or false and fraudulent representation or statement, or false pretense, or confidence game, or false and bogus check or instrument or coin or metal, as the case may be, contrary to the form of the statutes," etc.

It only requires a very cursory examination of the statute, and a very cursory comparison of it with the indictment, upon which the trial in this cause was had, to determine that that indictment does not conform to the section on which it is drawn in several particulars: (1) It fails to copy the prescribed statutory form. (2) It does not, in compliance with that form, charge...