State v. Clay

• Decision Date: 02 June 1890
• Citation: 13 S.W. 827,100 Mo. 571
• Parties: The State v. Clay, Plaintiff in Error
• Court: Missouri Supreme Court

13 S.W. 827

100 Mo. 571

The State v. Clay, Plaintiff in Error

Supreme Court of Missouri

June 2, 1890

Error to Newton Circuit Court. -- Hon. M. G. McGregor, Judge.

Reversed.

W Cloud and Adiel Sherwood for plaintiff in error.

The indictment is bad. (1) It does not state the specific property obtained, nor allege that the option had a value. State v. Crooker, 95 Mo. 349; State v Rockford, 52 Mo. 199. (2) It does not state the true name of the person defrauded. The evidence shows that the property belonged to Eliza Splitlog, and not to her and Mathias Splitlog. State v. Horn, 93 Mo. 190; State v. McChesney, 90 Mo. 120. (3) No venue is laid, and there is no allegation that any money or property was obtained in Newton county, Missouri, where the indictment was found. State v. Shaeffer, 89 Mo. 279. (4) There is no allegation that either money or property was obtained, or that the agreement was executed and delivered, or that title passed thereby. R. S. 1879, sec. 1561; State v Fancher, 71 Mo. 463; State v. Shaeffer, 89 Mo. 271. (5) Neither the purport of the writing nor the written instrument itself is set out. State v. Pullens, 81 Mo. 387. (6) Even if the option was executed and delivered, it ceased to belong to Eliza and Mathias Splitlog, and defendant could not defraud them by obtaining it. State v. Dowd, 95 Mo. 167. (7) It does not allege that the persons from whom the option was obtained relied upon the representations made, nor that the representations were false, and defendant knew them to be so. State v. Evers, 49 Mo. 542; State v. Saunders, 63 Mo. 482; State v. Bonnell, 46 Mo. 395; State v. Connor, 11 N.E. 454; Pattee v. State, 10 N.E. 421; State v. Delay, 5 S.W. 607. (8) Neither the common law nor statutory form is followed. Either the common law or statutory form must be followed. State v. McChesney, 90 Mo. 120. In this case, nothing was left but the common law. The statutory form could not be followed here -- the words, "a valuable thing," do not appear in the latter part of the section wherein the form of indictment is prescribed (R. S. 1879, sec. 1561), and the defect cannot be supplied by intendment. Ex parte Donaldson, 44 Mo. 149. (9) The evidence shows that the land was the fee-simple separate property of a married woman. There is no proof as to what provisions are made by the law of Kansas for the conveyance of such property, hence the presumption that it is the same as the law of the forum. The instrument pleaded does not show a compliance with the law of Missouri. It is not "jointly made and acknowledged and certified." Hence is a void instrument, and could not be "a valuable thing." R. S. 1879, sec. 670; Bartlett v. O'Donoghue, 72 Mo. 563; Hoskinson v. Adkins, 77 Mo. 540.

John M. Wood, Attorney General, R. F. Clark, Prosecuting Attorney, J. W. Brunk and Wm. Rush, Jr., for the State.

(1) The indictment is good. It meets the objections stated by this court in the case of State v. Crooker, 95 Mo. 389, in this, that it sets up in the body of the indictment the valuable thing charged to have been obtained by defendant Clay, so that defendant was fully informed as to what the valuable thing was which he is charged with obtaining. (2) The indictment charges that the option and power of attorney was obtained from Eliza and Mathias Splitlog; that it was a "valuable thing," and that it was obtained by means and use, etc. R. S. 1879, sec. 1561; State v. Porter, 75 Mo. 171. (3) The venue is laid in the margin of the indictment, the first statement in the indictment is "State of Missouri, Newton county," and this is a sufficient laying of venue for the purpose of locating all of the allegations in the body of the indictment, and it is not necessary to allege a venue in the body of the indictment. R. S. 1879, sec. 1813; State v. Dawson, 90 Mo. 149; State v. Keel, 54 Mo. 182. Section 1561, Revised Statutes, 1879, does not require that the indictment must allege that either money or property was obtained. It does charge that defendant Clay obtained "a valuable thing," and this court has sustained this very form of indictment. The indictment sets up the whole body of the option and power of attorney (the valuable thing obtained) which shows that it was obtained. State v. Porter, supra. (4) The indictment in case at bar does not allege that the option and power of attorney was executed and delivered by the victims of Clay, but charges that he obtained it by means, and by use, of a trick, etc. Hence the case of State v. Dowd, 95 Mo. 163, does not apply to the case at bar. (5) After reading the testimony of the Splitlogs and Amos, it is readily seen that this is just the kind of a case that was intended by the legislature to be covered by section 1561, Revised Statutes, 1879. It is a purely statutory offense. If defendant had been indicted under section 1335, Revised Statutes, 1879, the punishment would have been wholly inadequate for the offense. State v. Porter, supra, and other authorities cited. (6) The statutory form, 1561, supra, has been followed substantially, and has been repeatedly held good by this court. State v. Sarony, 95 Mo. 349; State v. Beaucleigh, 92 Mo. 490; State v. Bayne, 88 Mo. 604, and cases cited.

Sherwood, J. Brace, J., concurs on all points.

OPINION

Sherwood, J.

-- 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 empaneled, 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 eleventh 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 twelfth 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 northeast corner of the southeast quarter of section sixteen (16), township eleven (11), range twenty-five (25), and running thence eighty (80) poles, thence south one hundred and forty (140) poles, thence east eighty (80) poles, thence north one hundred and forty (140) poles, 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 eight hundred dollars per acre.

" 'That, for and in consideration of one dollar, 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 assigns to buy and become the purchaser or purchasers 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 eight hundred dollars 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 all of the aforesaid property for the price and sum of eight hundred dollars 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 there of 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.

" 'Mathias his X mark Splitlog,

" 'Eliza her X mark Splitlog.' "

"All and singular by means and by use of a trick, fraud...