State v. Dennis

• Citation: 80 Mo. 589
• Parties: THE STATE v. DENNIS, Appellant.
• Decision Date: 31 October 1883
• Court: United States State Supreme Court of Missouri

80 Mo. 589

THE STATE

v.DENNIS, Appellant.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Moberly Court of Common Pleas.--HON. G. H. BURCKHARTT, Judge.

AFFIRMED.

T. B. Kimbrough and S. C. Major for appellant.

The court erred in overruling the demurrer and the motion in arrest, it being admitted that the possession of the mules was at no time in defendant in Randolph county. The grand jury had no right to inquire into the offense charged. Const. of Mo., art. 2, § 22; R. S. 1879, §§ 1689, 1968; State v. Burns, 48 Mo. 438; State v. Meyer, 64 Mo. 190; 15 Ind. 378; Ex parte Slater, 72 Mo. 102; 1 Bishop Crim. Proc., §§ 49, 50; 4 Bl. Com., 303; 1 Stark. Crim. Plead., (2 Ed.) 1. The false pretenses must be relied on and confided in as true, and be the inducement upon which the prosecutor parted with his property. And Grant never having parted with his property in Randolph county, defendant is guilty of no offense punishable within the jurisdiction of the Moberly court of common pleas. R. S., §§ 1335, 1561; State v. Evers, 49 Mo. 542; State v. Bonnell, 46 Mo. 395; State v. Green, 7 Wis. 676; State v. Mager, 11 Ind. 154; Comm. v. Drew, 19 Pick. 179; Ranney v. People, 22 N. Y. 413; Blanchard v. People, 90 N. Y. 314; 1 Bishop Crim. Law, §§ 204, 206; People v. Adams, 3 Denio 190.

D. H. McIntyre, Attorney General, for the State.

The evidence offered by the State brought the defendant within the statute. R. S. 1879, § 1561; Kelley's Crim. Law, § 640; Desty's Crim. Law, § 149a; State v. Evers, 49 Mo. 542; Comm. v. Alsop, 1 Brewster (Pa.) 328; Bowler v. State, 41 Miss. 570. The intent may be inferred from the guilty act, and need not be directly proved. People v. Herrick, 13 Wend. 87; 2 Wharton Crim. Law, (8 Ed.) § 1184; 2 Bishop Crim. Law, (7 Ed.) § 471; Comm. v. Coe, 115 Mass. 501; State v. Tessier, 32 La. An. 1227; People v. Hayes, 11 Wend. 557. The indictment is in the form authorized by statute, and has been repeatedly sustained by this court. State v. Fancher, 71 Mo. 460; State v. Connelly, 73 Mo. 235; State v Norton, 76 Mo. 180.

NORTON, J.

The defendant was tried at the October adjourned term, 1883, of the Moberly court of common pleas, convicted and sentenced to imprisonment in the penitentiary for four years. The trial was had under an indictment, the formal parts of which being omitted, is as follows:

“That John B. Dennis, late of the county of Randolph aforesaid, on the 12th day of January, 1883, at Prairie township, in Randolph county and state aforesaid, within the jurisdiction of said Moberly court of common pleas, did, with intent to cheat and defraud, unlawfully and feloniously obtain from Thomas J. Grant his property, to-wit: twenty-four head of mules, by means and by use of false and fraudulent representations, and statements, and fraud, and deception and false pretense, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state.”

This indictment is based on section 1561, R. S., and under the ruling 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 it must be held to be sufficient.

It is however insisted by counsel, first, that the evidence does not show that defendant committed any offense, and second, that if the offense charged in the indictment was committed, it was not committed in Randolph county but in the city of St. Louis, and that therefore the trial court erred in overruling defendant's demurrer to the evidence, and in submitting the case to the jury. If either one of these points is well taken the judgment must be reversed, and to determine whether they are or not, a review of the evidence is necessary.

It appears from the evidence that Thomas J. Grant, who resided in Randolph county, was the owner of twenty-four head of mules, which he had on his farm in said county; that defendant came to his house on the 12th day of January, 1883, and proposed to buy them; that they could not agree that day; that negotiations for the purchase of them were resumed the next day by the defendant when a sale was made concerning which Grant testified as follows:

“We finally agreed upon $140 per head, less the freight which was $32, making the whole amount for the mules to be $3,360, which reduced by the freight $32, and then less the amount paid in cash made it $3,248. He, Dennis, said I want you to bear in mind that my own good money is to pay for these mules. This was the fourth car load of mules I had sold Dennis. He said I need not fear that I would get my money, and that he had the money on deposit in St. Louis with which to pay the draft.” This witness further testified that “while the mules were being loaded in the cars, the defendant cried out at the top of his voice that he was nearly killed, that he had been struck on the head and he guessed it would end him; he was carried in the depot where his head was examined and there was no sign of a blow, no knot, no blood nor cut, nor any indication that he had been struck, and though he continued to complain, and said he did not think he would ever get well, yet when we proposed to send for a doctor he said, ‘oh no, I will soon be all right,’ and as the train was then about due, and the mules were not paid for, I asked him for the money, and he continued his groans, ran his hands in his pockets, handed me his pocket-book, told me to take out of it as part payment on the mules, all there was in it, leaving him enough to get to St. Louis. I found in his pocket near $100, and I took out and kept $80, and gave him the balance. He said ‘just leave me enough to get home.’ He took the train and started for St. Louis. The twenty-four head of mules were shipped in my name to McPike & Johnson, in St. Louis, as consignee. Dennis gave me a draft on himself addressed to McPike & Johnson, in St. Louis, Missouri, which read as follows:

$3,248.

RENICK, January 13th, 1883.

McPike & Johnson pay to the order of T. J. Grant $3,248, and charge the same to account of John B. Dennis, St. Louis.

(Signed)

J. B. DENNIS.

Witness further testified that he inclosed this draft to McPike & Johnson in a letter, which is as follows:

RENICK STATION, January 13th, 1883.

MCPIKE & JOHNSON, St. Louis, Mo.:

I inclose draft on you for $3,248, which you will please honor, by sending check to me on Randolph Bank at Moberly, Missouri. The draft is for twenty-four mules I sold to John B. Dennis.

(Signed)

T. J. GRANT.

He further stated that McPike & Johnson telegraphed him that Dennis had sold the mules. Witness also testified that at the time the sale was made to Dennis, Dennis asked him to give him a statement showing what he paid for the mules, and that at his instance and dictation, he signed the following paper:

RENICK, January 12th, 1883.

MCPIKE & JOHNSON:

Gents: I sold to-day to Mr. John B. Dennis, twenty-four head of mules for $140 per head, which makes $3,360.

(Signed)

T. J. GRANT.

Dennis said his only object in getting this statement was to show it to any one to whom he would sell, that he was to give $140 per head, and for no other purpose. Witness stated that he consigned the mules as he did because Dennis requested him to do so, and to protect himself.

Mr. Powell testified as follows: “I was depot agent on the 12th and 13th of January, 1883. Dennis asked me to get a car, and said ‘I think I will buy Grant's mules, but don't you tell him, for if you do Grant may raise the price on me;’ that he, Powell, wrote the draft and Dennis signed it, and said that the money was with McPike & Johnson to pay the draft with, and the mules were shipped by Grant in his name to McPike & Johnson. Did not know at whose instance the consignment was made; that he drew the draft at the instance and direction of Dennis, and he directed how the mules should be consigned.”

Johnson, of the firm of McPike & Johnson, testified that he saw the Dennis draft in a letter written by Grant to McPike & Johnson, on Sunday, January 14th, 1883. Saw Dennis on Sunday in the yard, and Meyer was with him; they traded after twelve o'clock. Dennis showed me and to Meyer, in my presence, the statement from Grant, to the effect, that he, Dennis, had bought the mules and paid for them, and that they were his. Meyer bought the mules and claimed to have paid Dennis for them. This witness further stated that Dennis never had money enough deposited with McPike & Johnson to pay for the mules.

The book-keeper of McPike & Johnson testified that on the 13th of ...