State v. Bonnell

• Decision Date: 31 August 1870
• Citation: 46 Mo. 395
• Parties: STATE OF MISSOURI, Appellant, v. MARTIN C. BONNELL, Respondent.
• Court: Missouri Supreme Court

46 Mo. 395

STATE OF MISSOURI, Appellant,

v.MARTIN C. BONNELL, Respondent.

Supreme Court of Missouri.

August Term, 1870.

Appeal from First District Court.

H. B. Johnson, Attorney-General, for appellant.

I. The indictment distinctly and specifically avers that the defendant obtained the money from Hoover by means of the false pretenses previously recited, which is equivalent to alleging that the false pretenses were believed and acted upon by Hoover. (2 Am. Crim. Law, § 2128; People v. Miller, 2 Pars. Crim. Rep. 197; Commonwealth v. Mason, 9 Gray, 125; State v. Green, 7 Wis. 676; 2 Am. Crim. Law, § 2162.) The case of Commonwealth v. Strain, 10 Metc. 521, was a case of the sale of property and false representations in regard to the character and value of the property, and hence not in point. It was also made under a different statute.

II. The indictment charges the offense in the language of the statute, and this is sufficient.

III. Had there been a sale and delivery of the cattle it would have been necessary to set up the contract and sale with more particularity. But this is not the case where the false pretense is in regard to the ownership of property not sold or transferred. (2 Whart. Am. Crim. Law, §§ 2149-50; Shiff v. The People, 2 Pars. Crim. Rep. 139; 2 Am. Crim. Law, § 2162; State v. Vanderbildt, 4 Dutch, 328.)

Doniphan, Grubb & Tutt, for respondent.

The indictment was defective in not charging that Hoover, the prosecuting witness, was induced to part with his property by relying upon the statements of the defendant. (7 Wis. 676; 2 Bish. Crim. Law, 438, 440; 4 Barb. 151; Commonwealth v. Strain, 10 Metc. 321; Whart. Am. Crim. Law, § 2128; 13 Wend. 311; see forms and notes in Whart. Pr. & Prec., 1st ed. 262, 2d ed. 557.)

WAGNER, Judge, delivered the opinion of the court.

This was an indictment under the statute for obtaining goods under false pretenses (Wagn. Stat. 461, § 47). The cause was tried at the Buchanan Circuit Court, and the jury found the defendant guilty. A motion was made in arrest of judgment on account of the insufficiency of the indictment, and exceptions were also taken to the admission of evidence and the giving of instructions, all of which being overruled, the case was taken to the District Court, where the judgment of the Circuit Court was reversed. The indictment substantially avers that the “defendant Bonnell, devising and intending to cheat and defraud one Jacob Hoover of his goods, moneys, chattels, and property, feloniously, unlawfully, knowingly, and designedly did falsely pretend to the said Jacob Hoover that he, the said Martin C. Bonnell, was then and there the owner of and had the right to sell and could make a good title to three head of cattle, whereas, in truth and in fact, he, the said Martin C. Bonnell, was not then and there the owner of said cattle, nor had he then and there the right to sell the same, nor could he make a good title to the said cattle, nor any title whatever, as he at the time well knew; by means of which said false pretenses the said Bonnell did feloniously, unlawfully, knowingly, and designedly obtain from the said Hoover the sum of thirty dollars, with intent to cheat and defraud,” etc.

Although, under the liberal system of criminal practice now prevailing in this State, the same strictness is not required that was formerly necessary, still the pleader must set out in the indictment a substantive offense, and on the trial the prosecution will be confined in the proof to the allegations set forth in the indictment. It will be observed that the indictment does not allege any bargain, nor any colloquium as to a bargain, for the cattle, nor is there any inducement to show by reason whereof Hoover parted with his money.

In The State v. Newell, 1 Mo. 248, it was held that an indictment was well laid which charged that “N.” obtained bills by pretending he had slaves, which he sold for said bills, when, in fact, he had no slaves. In Commonwealth v. Strain, 10 Metc. 521, it...