The State v. McBrien

• Citation: 178 S.W. 489,265 Mo. 594
• Parties: THE STATE v. JOHN McBRIEN, Appellant
• Decision Date: 06 July 1915
• Court: United States State Supreme Court of Missouri

178 S.W. 489

265 Mo. 594

THE STATE v. JOHN McBRIEN, Appellant

Supreme Court of Missouri, Second Division

July 6, 1915

Appeal from St. Francois Circuit Court. -- Hon. W. N. Evans, Judge.

Reversed and remanded.

S. P Bond, S. S. Bass, Jasper Burks and Felix O. Poston for appellant.

(1) The indictment is bad in the following particulars: First, there is no positive, direct or specific averment or allegation anywhere in the indictment, that the appellant obtained any money, property or effects from the bank, that is declared in specific and direct terms to be the money or the property or effect of the bank. Ownership of property must be specifically alleged; it will not be inferred. Moulie v Florida, 37 Fla. 321; State v. Ellis, 119 Mo 437; Bishop, Direction and Forms, sec. 420 (note); State v. Blizzard, 70 Md. 385; State v. Lathrop, 15 Vt. 279; State v. Miller, 153 Ind. 229; State v. Clark, 141 Iowa 297; Washington v. State, 41 Tex. 583. Second, the negativing clauses of the indictment allege the existence of liens and encumbrances upon seventy-five head of neat cattle and personal property and upon certain alleged lands. The alleged instruments constituting the liens and the encumbrances upon the cattle, personal property and lands should be fully set out and described. State v. Stowe, 132 Mo. 199; State v. Hubbard, 170 Mo. 346; State v. Marion, 235 Mo. 359; People v. Winner, 80 Hun (N. Y.), 130; State v. Barbee, 136 Mo. 440. The allegation of the indictment "believing said false pretenses, etc., to be true, and relying thereon, and being deceived thereby, was and were induced by reason thereof, to loan and pay over to John McBrien," is clearly insufficient. State v. Hubbard, 170 Mo. 346; State v. Kelley, 170 Mo. 151; State v. Phelan, 159 Mo. 122; State v. Johnson, 154 Mo.App. 265. Third, a promissory note payable in ninety days from date, is alleged to have been given for the one hundred fifty dollars alleged to have been obtained by means of false pretenses by appellant. The indictment should allege as a material fact, that the note was not paid. A material fact is one necessary to be proven. The note was set out in the indictment in part. Its nonpayment worked and completed the crime, if any. The fact of non-payment should have been alleged. State v. Clay, 100 Mo. 571; State v. Barbee, 136 Mo. 440; State v. Saunders, 63 Mo. 482; State v. Phelan, 159 Mo. 122; State v. Hagan, 164 Mo. 654. Fourth, the negativing clauses of the indictment are not distinct and certain. The negativing and falsifying allegation in an indictment for false pretenses should be as specific as in the charge of perjury, is the law. The negativing clauses of the indictment herein are uncertain, not specific, and do not negative all of the alleged false representations and pretenses, and are of doubtful and uncertain meaning. State v. Peacock, 31 Mo. 413; State v. Delay, 93 Mo. 98; State v. Phelan, 159 Mo. 122; People v. Griffith, 122 Cal. 212; State v. Coyne, 214 Mo. 344. Fifth, that part of the indictment which set out the representation, statement and pretense alleged to have been made by appellant with respect to the ownership and possession of "seventy-five head of neat cattle and other personal property" does not use the statutory term "falsely" and "fraudulently" immediately in connection with the terms "represent," "state" and "pretend." Sixth, the indictment fails to positively and specifically allege that the alleged representations, statements and pretenses were designed and made, with a purpose to obtain credit or a loan. The indictment is bad and insufficient under Sec. 4765, R. S. 1909, as amended by Laws 1913, p. 222, because it fails to set out any offense as defined by said statute. The statutory language requires the statements, etc., be false and fraudulent and that by means or use of. State v. Pickett, 174 Mo. 663; State v. Clay, 100 Mo. 571; State v. Haseltine, 130 Mo. 468; State v. Pickett, 174 Mo. 663. (2) The motion to discharge appellant in the nature of a demurrer to the evidence prayed for at the close of the State's case and again at the close of the whole case, should have been given. It was error not to do so. Because the obtaining of a loan or the proceeds thereof or credit for the benefit of a third person is not within the statute. Sec. 4565, R. S. 1909; Rex v. Sans Gareet, 6 C. C. 260; Lucas v. People, 75 Ill.App. 665; State v. Martin, 167 Mo.App. 346; State v. McGinnis, 71 Iowa 685. (3) The motion to discharge on the ground of variance should have been sustained. The allegation of the indictment "that the said John McBrien in the manner and by the means aforesaid feloniously, designedly, falsely and fraudulently did then and there obtain and receive of and from the said Farmers' Bank aforesaid, the said sum of one hundred and fifty dollars" is not sustained by the proof of a loan and a credit extended by the bank to a third person, that is, to Mary McBrien, for the sum of one hundred fifty dollars. 1 Ros. Crim. Ev., sec. 89 (note); Hughes, Crim. Law, secs. 654, 658; Com. v. Harkins, 128 Mass. 79; State v. Meysenburg, 171 Mo. 1; Comm. v. Howe, 132 Mass. 250; Lory v. People, 229 Ill. 268; State v. Schlib, 159 Mo. 130; State v. Dodson, 72 Mo. 283; State v. Crossthwaite, 130 Mo. 358. (4) The court abused its discretion and erred in overruling the defendant's motion for a change of venue from the county of St. Francois, on the ground that the inhabitants of said county, in which said cause was pending, were so prejudiced against the defendant that he could not have a fair trial in said county. Not only was palpable injustice done, but the court abused its discretion. State v. Hunt, 91 Mo. 490. (5) The court erred in not submitting in its instruction to the jury whether the defendant might have been guilty of a misdemeanor under the evidence. Sec. 1927, R. S. 1899 (now Sec. 4565, R. S. 1909, as amended, Laws 1911, p. 164); State v. Pickett, 174 Mo. 667.

John T. Barker, Attorney-General, and Lee B. Ewing, Assistant Attorney-General, for the State.

(1) The court did not err in overruling appellant's application for change of venue. State v. Barrington, 198 Mo. 89; State v. Hudspeth, 150 Mo. 12; State v. Headrick, 149 Mo. 396; State v. Kring, 11 Mo.App. 92. (2) The indictment is in the language of the statute, follows approved precedent, and is sufficiently definite and certain. R. S. 1909, sec. 4565; Laws 1911, p. 194; State v. Lovan, 245 Mo. 516; State v. Wilson, 223 Mo. 159; State v. Vandenberg, 159 Mo. 233; State v. Woodward, 156 Mo. 144; State v. Foley, 247 Mo. 613; Kelley's Crim. L. & Prac. (3 Ed.), sec. 692; State v. Hubbard, 170 Mo. 350; State v. Guernsey, 9 Mo.App. 313. (3) There was no variance between the allegations in the information and the proof. State v. Terry, 109 Mo. 622; State v. Foley, 247 Mo. 633; State v. Meysenburg, 171 Mo. 28; State v. Mispagle, 207 Mo. 574; State v. Dimick, 107 N.Y. 13; State v. Palmer, 40 Kan. 474; Schaumoleffel v. State, 102 Md. 470; People v. Hoffman, 142 Mich. 531. The question of a variance was for the trial court. R. S. 1909, sec. 5114; State v. Rich, 245 Mo. 165; State v. Burk, 234 Mo. 579; State v. O'Brien, 228 Mo. 411; State v. Crow, 107 Mo. 345. (4) The instructions given by the court of its own motion and those given at request of appellant were correct, and fully covered the case. (a) State v. Keyes, 196 Mo. 144; State v. Alexander, 119 Mo. 457; State v. Foley, 247 Mo. 624. (b) State v. McDonough, 232 Mo. 219; State v. Dilts, 191 Mo. 665; State v. Brown, 104 Mo. 365. (5) The record herein shows no error by the trial court in its rulings upon the arguments of State's counsel or the prosecuting attorney. State v. Fitzgerald, 130 Mo. 436; State v. Church, 199 Mo. 450; State v. Zumbunson, 86 Mo. 113.

OPINION

BROWN, J.

Charged with obtaining money under false pretenses, defendant was convicted in the circuit court of St. Francois county, and appeals from a judgment fixing his punishment at two years in the penitentiary.

Points which the record and briefs in this case warrant us in considering are (1) alleged invalidity of indictment; (2) failure of the trial court to grant a change of venue from St. Francois county; (3) failure of the trial court to instruct the jury on the legal effect of obtaining less than $ 30 by false pretenses, and (4) improper remarks of special counsel for the State.

The evidence on behalf of the State tends to prove that for many years prior to May 13, 1913, defendant (John McBrien) resided on a farm in St. Francois county, which farm had been willed to his wife, Mary McBrien, to hold during the life of her husband. Prior to said May 13, 1913, defendant and his wife had become indebted to the St. Francois County Bank at Farmington, Missouri, to an amount exceeding $ 9000, for which they had given their note. They had also become indebted to the Farmers Bank of the same city in the sum of $ 1650. On said May 13, 1913, the defendant, upon behalf of his wife, Mary McBrien, applied to one L. H. Williams, the cashier of said Farmers Bank, for an additional loan of $ 150, all of defendant's business with said bank having theretofore been conducted in the name of his said wife. Defendant offered as security for the proposed loan a note signed by him and his wife. Mr. Williams expressed some disinclination to grant this loan, for the reason (as he explained) that defendant was not giving all of his business to the said last-named bank.

The defendant then went to one B. H. Marbury, the attorney for the Farmers Bank, and asked said Marbury to advise the bank to make this loan, representing to Marbury that he and his wife owned and were feeding about seventy-five head of beef cattle, all of which were unincumbered; that his wife's life estate...