State v. Fancher
| Decision Date | 30 April 1880 |
| Citation | 71 Mo. 460 |
| Parties | THE STATE, Appellant, v. FANCHER. |
| Court | Missouri Supreme Court |
Appeal from Jackson Criminal Court.--HON. H. P. WHITE, Judge.
REVERSED.
J. L. Smith, Attorney-General, for the State.
John W. Beeler and Tichenor & Warner, for respondents, cited against the constitutionality of section 1561, Revised Statutes 1879, Murphy v. State, 24 Miss. 590; Hewitt v. State, 25 Texas 722.
At the November term, 1879, of the criminal court of Jackson county, an indictment was found, charging that the defendants “on, &c., at, &c., did unlawfully and feloniously obtain of and from Robert Fisher and John T. Donnellan, then and there being, the sum of thirty dollars, in lawful money of the United States, duly and legally issued under and by virtue of the laws of the United States, of the value of thirty dollars of the goods and chattels of the said Robert Fisher and John T. Donnellan, by means and by use of a cheat, and a fraud, and a false and fraudulent representation, and false pretense, and a false and bogus check and instrument, with the intent them, the said Robert Fisher and John T. Donnellan, then and there feloniously to cheat and defraud, contrary, &c., and against,” &c.
To this indictment the defendants interposed a demurrer, assigning as reasons therefor, “that said indictment fails to inform defendants of the nature and cause of the accusation against them, or either of them, in this: That said indictment charges defendants, in general terms, with obtaining money by means of a cheat, a fraud, a false and fraudulent representation and pretense, and a false and bogus check and instrument, without stating any facts whatever to inform defendants, or either of them, in what the cheat, fraud, false and fraudulent representation and pretense, or the false and bogus check or instrument, consisted, and that several distinct acts and charges are imperfectly united in one count,” &c. The demurrer was successful, and the State is here as appellant.
The indictment is framed upon section 1561, Revised Statutes 1879, which 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 means or use of any trick or deception, or false and fraudulent representation or statement, or pretense, * * or by means or by use of any false or bogus check, or by any other written or printed or engraved instrument” &c., &c., “shall be deemed guilty of felony,” &c., &c. The section in question further provides that: “In every indictment under this section, it shall be deemed and held a sufficient description of the offense to charge that the accused did, on_____, unlawfully and feloniously obtain or attempt to obtain (as the case may be) from A. B., (here insert the name of the person defrauded) his or her money or property by means and by use of a cheat, or fraud, or trick, or deception, or false and fraudulent representation or statement or false pretense” &c., &c.
Mr. Bishop says: “Where,for instance,a statute forbids several things in the alternative, it is usually construed as creating but one offense; and the indictment may charge the defendant with the commission of all the acts, using the conjunction and where the statute uses the disjunctive or; or on the other hand, the indictment may contain but one or two of the things at the election of the pleader.” 1 Bishop, Crim. Prac. § 191. In Stevens v. Commonwealth, 6 Met. 241, where the statute prescribed the punishment of “every person who shall buy, receive, or aid in the concealment of any stolen goods, knowing the same to have been stolen,” it was held that there was but one offense mentioned by the statute, although that offense might be committed in one of three modes: by buying, receiving, or aiding in the concealment of stolen goods. So in the present instance, the statute under consideration provides for the punishment of but one offense, though at the same time recognizing by the language employed that the offense might be perpetrated in a variety of ways.
The gist of the offense is the obtaining of money or property, with intent to defraud; and therefore, however, varied the means, as recognized by the statute, which the fraudulent intent may resort to, in order to accomplish and affectuate its purpose, still that purpose when attained constitutes but one crime. Besides, a case may be very readily imagined, where the unlawful purpose would fail of its accomplishment but for the employment of all the...
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State v. Rosegrant, 34553.
...acts and the commission of either or all of said acts as part of one transaction constitute but one offense. [See State v. Fancher, 71 Mo. 460, 462.] The statute imposes but one punishment. There is nothing in the statute warranting the infliction of separate and distinct penalties for each......
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