State v. Bayne

• Citation: 88 Mo. 604
• Parties: THE STATE v. BAYNE, Appellant.
• Decision Date: 30 April 1886
• Court: United States State Supreme Court of Missouri

88 Mo. 604

THE STATE

v.BAYNE, Appellant.

Supreme Court of Missouri.

April Term, 1886.

Appeal from Jackson Criminal Court.--HON. H. P. WHITE, Judge.

AFFIRMED.

M. A. Fyke and Burris & Goldsby for appellant.

(1) The motion to quash should have been sustained. It was necessary to allege and prove that the money was obtained with intent to cheat and defraud. R. S., sec. 1561; State v. Fancher, 71 Mo. 460. (2) Defendant's demurrer to the evidence should have been sustained. There is nothing whatever in the evidence to show that defendant intended to cheat or defraud the witness, neither is there any trick or other thing developed by the testimony which constitutes any offence whatever under section 1561. Rainey v. People, 22 N. Y. 413. (3) The court erred in admitting the evidence of Gen. P. Frost. (4) The first instruction given by the court is clearly wrong, and the second and third are erroneous in that they seem to cast the burden of proving the good faith of the transaction upon defendant. The ninth is a comment upon the evidence. (5) The court erred in refusing defendant's instructions. The proposition of law contained in the first instruction asked by defendant, and refused, has met with the sanction of this court in many cases. State v. Verbach, 66 Mo. 168; State v. Chunn, 19 Mo. 233; State v. Evans, 49 Mo. 542.B. G. Boone, Attorney General, for the state.

The indictment follows the form prescribed by the statute (section 1561) and is sufficient. State v. Simmons, 12 Mo. 268; State v. Ragan, 22 Mo. 459; State v. Schieneman, 64 Mo. 386; State v. Chumley, 67 Mo. 41; State v. Fancher, 71 Mo. 460; State v. Porter, 75 Mo. 171. It was not necessary to charge that the offence was committed with intent to cheat and defraud Brooker. State v. Scott, 48 Mo. 422; State v. Smallwood, 68 Mo. 192; Morton v. People, 47 Ill. 468. The testimony of the witness, Frost, for the state, as to similar acts of defendant, was competent for the purpose of showing the intent with which the act charged was done. Com. v. Turner, 3 Met. 19; State v. Meyers, 82 Mo. 558, and cases cited. No error was committed in giving and refusing instructions.

NORTON, J.

This indictment is framed on section 1561, Revised Statutes, and follows the form prescribed in said section and is sufficient, under the rulings of this court, in the cases of State v. Fancher, 71 Mo. 460; State v. Connelly, 73 Mo. 235, and State v. Norton, 76 Mo. 180.

At the close of the evidence on the part of the state, defendant asked an instruction in the nature of a demurrer to the evidence, which was overruled, and this action of the court is assigned as error.

The disposition of this question involves a consideration of the evidence, which is substantially as follows:

Brooker, whose money was alleged to have been obtained by defendant, testified and said: “I was hunting work when I saw a card advertising for parties wanting employment, and obtained the address of J. W. Bayne, Adams House, Kansas City, as the party advertising. I came to Kansas City, saw Bayne in August, 1885, at the Adams House, where he agreed to give me thirty-five dollars per month and expenses to travel for him and teach others how to make pictures. He also agreed to show me how to make the pictures and furnish me an outfit. For this he charged me fifteen dollars. I paid him this amount, and he agreed to send me out the next night, and after several days he gave me sixty-five cents to pay my way to Liberty, Mo. I went to Liberty and staid one day. He promised to have the outfit there for me inside of three days. I stayed there until my money gave out, and then came back to Kansas City, where I met Bayne on the street. When he met me he said, ‘Hello, you snoozer, are you back again?’ I told him I was out of money, and he paid for my breakfast and bed, and said he would send me out the next night. I staid until the next night, and as nothing was done I went to see an officer, and told him about the matter and then went back to see Bayne and asked him when he was going to send me out. He said he would send me out as soon as he got ready. The fifteen dollars was for teaching me how to make pictures, and for furnishing me with a job. He was to procure an outfit from St. Louis in a few days. Bayne said he was traveling for J. C. Somerville, of St. Louis. The arrangement was that I was to travel from town to town and teach others how to make the pictures as Bayne had taught me. I was to charge thirty dollars for my instructions, fifteen dollars of which I was in each case to send to Bayne. The fifteen dollars I gave Bayne was all the money I had. After I had paid Bayne, he kept me coming day after day for several days, and finally gave me sixty-five cents, with which I paid my way to Liberty, where he directed me to go.”

On cross-examination, witness said: “The money I was to receive as a salary was to come out of what I earned. Bayne taught me how to make or enlarge pictures, as he agreed to. I felt that I was qualified to go out and teach others, as Bayne had taught me. I am not able to say that the instructions I received from Bayne are of no value.”

Frost, another witness for the state, testified to the same effect as to Bayne having obtained fifteen dollars from him in the same way he obtained the money from Brooker.

J. C. Somerville, of St. Louis, whom Bayne claimed to represent, testified that he did not know defendant; that he never had been his agent, nor had he ever received any orders for supplies from Bayne.

Officer Snow, who arrested Bayne, testified as to the statements made by Brooker and Frost to him prior to Bayne's arrest, and that he saw Bayne, who promised to refund the money he had obtained from the complainants. On his failure to do so the officer went again to arrest him; found he had gone, and apprehended him at the Union depot, in Kansas City, where he was dodging around the cars and attempting to evade the officer.

If the statute on which the indictment is founded were like the New York statute, which makes it an offence to obtain money or property by mock auctions, or “ by any other gross fraud or cheat at common law,” the case of Ranney v. People, 22 N. Y. 414, to which we have been cited, would apply, and the evidence above detailed would not support the indictment. But our statute is widely different and much more comprehensive in its scope. It provides that, “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 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 written or printed or engraved instrument, or spurious coin or...