State v. Barbee

• Decision Date: 15 December 1896
• Citation: 37 S.W. 1119,136 Mo. 440
• Parties: The State v. Barbee, Appellant
• Court: Missouri Supreme Court

37 S.W. 1119

136 Mo. 440

The State v. Barbee, Appellant

Supreme Court of Missouri, Second Division

December 15, 1896

Appeal from Caldwell Circuit Court. -- Hon. E. J. Broaddus, Judge.

Reversed and remanded.

Lavelock Kirkpatrick & Divelbiss for appellant.

(1) The indictment is insufficient. It does not state any conditions on which the Farmers Bank of Polo was to pay money to or for defendant, nor does it state how any money was obtained by him. This was imperatively necessary. 1 Bishop on Crim. Pro. [3 Ed.], secs. 508, 509; State v. Bonnell, 46 Mo 395; State v. Saunders, 63 Mo. 482; State v Hathaway, 106 Mo. 239; Com. v. Strain, 10 Metc. 521; Com. v. Goddard, 4 Allen, 212. (2) The alleged false pretense must be one calculated to mislead an ordinarily prudent man. If the statement, whether true or false, would not be calculated to induce a reasonably prudent man to part with his money, then the criminal law takes no notice of the wrong, and no crime has been committed. Rapalje on Larceny & Kindred Offenses, sec. 404; State v. Vorback, 66 Mo. 178; State v. Cameron, 117 Mo. 641; State v. Grady, 13 Bush (Ky.), 285; State v. Summer, 10 Vt. 587; 33 Am. Dec. 219; People v. Williams, 4 Hill (N. Y.), 9; 40 Am. Dec. 258. (3) In charging a felony the particular acts constituting the substantive crime must be distinctly and specifically alleged. 1 Bishop on Crim. Pro. [3 Ed.], secs. 86-88; State v. Green, 111 Mo. 588; State v. Kirby, 115 Mo. 447; State v. Rector, 126 Mo. 340; State v. Evans, 128 Mo. 412.

R. F. Walker, attorney general, for the state.

The indictment in this case is in the usual form and clearly charged the offense of which the defendant has been convicted. There is no error in the record proper and the judgment should be affirmed.

OPINION

Sherwood, J.

The defendant was indicted under section 3564, Revised Statutes, 1889, for obtaining $ 329.75 from the Farmers Bank of Polo, by means of false pretenses. Being tried, he was convicted and his punishment assessed at two years' imprisonment in the penitentiary.

The indictment, so far as necessary to quote it, is the following:

"That, William O. Barbee, at the county of Caldwell and state of Missouri, on or about the twenty-fourth day of October, 1894, did unlawfully, feloniously, designedly, and knowingly, with intent to cheat and defraud the Farmer's Bank of Polo in said county, a corporation duly incorporated under and by virtue of the laws of the state of Missouri for banking purposes, out of a large sum of money, to wit: the sum of three hundred and twenty-nine dollars and seventy-five cents, lawful money, did falsely pretend to one Manford Kern, cashier of said bank aforesaid, that he the said Barbee, was then and there the owner of a certain promissory note given in payment of a load of cattle sold by him to one William Watson, said note being made, executed, and delivered by said William Watson for the purchase price thereof, and so stated as aforesaid for the purpose aforesaid, and the said Manford Kern, as cashier aforesaid, believing the said false pretenses so made as aforesaid, and being deceived thereby, was induced by reason thereof to pay divers overdrafts on said bank on said day and within five days thereafter, drawn by said Barbee on said bank, and on account of said overdrafts or checks the said Barbee received from said bank through said Kern as cashier the sum of three hundred and twenty-nine dollars and seventy-five cents, lawful money of the United States, and of the value of three hundred and twenty-nine dollars and seventy-five cents, and the said Barbee by means of the said false pretenses and then and there well knowing them to be false so made by said Barbee as aforesaid to said Kern as cashier aforesaid, unlawfully, feloniously, designedly, and knowingly did obtain of and from said bank through said Kern, cashier as aforesaid, the said sum of three hundred and twenty-nine dollars and seventy-five cents, lawful money, of the value of three hundred and twenty-nine dollars and seventy-five cents, of the money and property of said bank with intent it -- the said bank -- then and there to cheat and defraud of the same, whereas, in truth and in fact said Barbee was not then and there the owner of said note as he then and there well knew, and said pretense was wholly false and untrue, and against the peace and dignity of the state."

The only question the record presents, is the sufficiency of the indictment, and for that reason it has been set forth. That portion of section 3564, supra, on which the indictment is based is in these words: "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."

Section 22 of our bill of rights declares that: "In criminal prosecutions the accused shall have the right to demand the nature and cause of the accusation." A declaration tantamount to this is made by article 6, amendment to the constitution of the United States.

The indictment herein does not state the date nor the amount of the note mentioned therein, nor when due and payable. Nor does it allege that said Watson was solvent or was represented to be solvent by defendant. Nor does it allege that in consequence of such representations defendant was authorized to draw drafts or overdrafts on the bank; nor that the bank agreed to pay such drafts in consequence of a belief in, and reliance upon, defendant's representations as to the fact that he was the owner of the Watson note, nor are any conditions, terms, or agreement on which the bank was to part with its money stated; nor is it stated in whose favor such overdrafts were drawn; nor the dates or amounts thereof. Now all these things would have to have been proved in order to conviction, and so it was necessary that they should have been alleged, because what is not alleged is not allowed to be proved, and because, further, the law, guided by the same beneficent spirit which presumes innocence until guilt be established, will presume that what the indictment does not charge does not exist. Mears v. Com., 2 Grant's Cas. (Pa.) 385.

The object and...