State v. Fraker

Decision Date21 February 1899
Citation49 S.W. 1017,148 Mo. 143
PartiesThe State, Appellant, v. Fraker
CourtMissouri Supreme Court

Appeal from Ray Circuit Court. -- Hon. E. J. Broaddus, Judge.


Edward C. Crow, Attorney-General, and Sam B. Jeffries, Assistant Attorney-General, for appellant.

(1) Defendant very strongly insisted in the lower court upon the fact that section 3826, Revised Statutes 1889, is unconstitutional. This section has been repeatedly declared to be constitutional in so far as the offense therein described is concerned. The form of the charge in the indictment therein given has alone met the disapproval of the court, and that only in the later decisions, as formerly it was held to be constitutional, which will be observed by reading the following decisions: State v. Levy, 119 Mo. 436; State v. Cameron, 117 Mo. 371; State v Fleming, 117 Mo. 377; State v. Kain, 118 Mo. 5; State v. Benson, 110 Mo. 18. Although that part of section 3826, which describes the form of the indictment for offenses of this kind be unconstitutional, the whole of said section is not. That part describing the offense must be declared valid according to numerous holdings of this court. State ex rel. v. Field, 119 Mo. 612; State v Clarke, 54 Mo. 17; Ensworth v. Curd, 68 Mo 282; State v. Kring, 74 Mo. 612; St. Louis v. Railroad, 89 Mo. 44; Tarkio v. Cook, 120 Mo. 1; State v. Bockstruck, 136 Mo. 335; State v. Newell, 140 Mo. 282. In order to commit an offense under this section an attempt to obtain money, property or valuables from another by intentionally cheating or defrauding, is sufficient. All the counts in the indictment founded upon this section properly charge the attempt to commit the offense by defendant. In fact, the actual procuring of the money or property by means of corrupt and fraudulent practices could have been charged against the defendant in the indictment, and a conviction for an attempt to commit a crime be obtained, provided the evidence was not of sufficient strength to warrant a conviction for obtaining the property. State v. Frank, 103 Mo. 120; State v. Montgomery, 109 Mo. 646; Kelley's Crim. Law, sec. 1092, p. 762; State v. Flanders, 118 Mo. 227; St. Joseph to use v. Owen, 110 Mo. 448. (2) An indictment which alleges that the defendant did, knowingly, designedly, falsely and feloniously pretend, etc., sufficiently avers the scienter; as does an indictment which, setting out and negativing the pretenses, alleges "all of which the defendant then and there well knew." 8 Ency. of Pl. and Pr., pp. 861, 862; State v. Hurst, 11 W.Va. 54; State v. Janson, 80 Mo. 97; People v. Lennox, 64 N.W. 488; State v. Smallwood, 68 Mo. 192; State v. Kain, 118 Mo. 5; State v. Scott, 48 Mo. 422. (3) If upon its face the indictment charges the offense with requisite precision and formality it will not be quashed on the ground that it contains immaterial allegations, or that some one pretense charged is not properly charged. State v. Joaquin, 43 Ia. 131; State v. Vandimark, 35 Ark. 396; Thomas v. People, 34 N.Y. 351; State v. Beasley, 59 Ala. 20; Cowan v. People, 14 Ill. 348; State v. Hathcock, 88 Ga. 91. (4) No objection can be made to the indictment because of its failure to charge defendant with attempting to directly obtain possession of the money which would be paid by the insurance company on account of the false pretenses used. Payment to his estate or to his legal representatives, whether it be executor, administrator or creditors, would be, in law, payment to him. Com. v. Drew, 19 Pick. 179; People v. Haynes, 11 Wendell, 557; People v. Herrick, 13 Wendell, 87; Franklin v. State, 52 Ala. 414. (5) In prosecutions for false pretenses it is not material to the jurisdiction of the court where the pretenses were made. They may have been made in a different county, or made in one county and the property obtained in another or in a different State from that in which the property was obtained. The obtaining of the goods, money or valuable thing by means of the false pretenses completes the crime and determines the venue of the trial. Stewart v. Jessup, 51 Ind. 413; State v. House, 55 Ia. 466; State v. Shaeffer, 89 Mo. 276; State v. Dennis, 80 Mo. 589; Norris v. State, 25 Ohio St. 217; Musgrave v. State, 32 N.E. 885; 2 Bishop's New Crim. Law, sec. 488; 1 Bishop's New Crim. Law, sec. 723; Bishop's Crim. Proc., secs. 53-58-61. (6) In order to establish the crime of obtaining money by false pretenses, or attempting to obtain money by false pretenses, it is not necessary that the person charged with the crime should be shown to have actually made the false pretenses personally to the parties whom he intended to defraud, but it may be sufficient to show that the party charged acted through an innocent agent in making such pretenses. False pretenses need not necessarily or solely be made by words, either spoken or written. If a person by his act or conduct induces another person to believe that a fact really is in existence when in reality it is not, and thereby obtains his money or property, or attempts to obtain his money or property, he comes within the scope of the statutes against false pretenses. 7 Am. and Eng. Ency. of Law, p. 721; People v. Oyer, 83 N.Y. 436; State v. Allred, 84 N.C. 749; State v. Alphin, 84 N.C. 745; Req. v. Kelleher, 14 Cox Criminal Cases, 48; State v. Goble, 60 Ia. 447; People v. Donaldson, 70 Cal. 116. (7) The indictment in the case under consideration does not seek to hold the defendant for "the obtaining of money by false pretenses," or by any means whatever, but expressly charged "an attempt to obtain" the same; and in such case the law, as accepted by text writers upon criminal procedure and in the adjudicated cases upon the question, undoubtedly is that the jurisdiction may be in the county where any attempt was made or in any county where an overt act was done to carry out the fraudulent design or intent of the party making the attempt to commit such felony.

James L. Farris, Sr., A. S. Lyman, John Dougherty and Lavelock, Kirkpatrick & Divelbiss for respondent.

(1) The section of statute under which the first and third counts were drawn (sec. 3826) is unconstitutional, and the motion to quash these counts was properly sustained on this ground. State v. Terry, 109 Mo. 601; State v. Cameron, 117 Mo. 371; State v. Fleming, 117 Mo. 377; State v. Kain, 118 Mo. 5. (2) In order to properly charge an offense under section 3940, the essential elements of the crime consummate must be as specifically alleged as though the primary offense was completed. The indictment does not contain such necessary averments and the motion to quash all the counts was correctly sustained for this reason. 1 Bishop's New Crim. Law, secs. 728, 737, 764; 2 Bishop's Crim. Pro. (2 Ed.), 194, 195; Kelley's Crim. Law and Practice (2 Ed.), 1092; State v. Montgomery, 109 Mo. 645; State v. Smith, 119 Mo. 446; State v. Harney, 101 Mo. 470; U. S. v. Cruikshank, 92 U.S. 542. (3) The indictment must be found in the county where the alleged offense was committed. The venue is there. The indictment herein does not charge, in any of the counts, the commission in Ray county of an offense prohibited by law. 1 Wharton, Crim. Law, sec. 181; Ex parte Slater, 72 Mo. 102; State v. Fitzgerald, 75 Mo. 571; State v. McGraw, 87 Mo. 161; State v. Hatch, 91 Mo. 568; State v. Smiley, 98 Mo. 605; In re McDonald, 19 Mo.App. 370; People v. Murray, 14 Cal. 160; U. S. v. Stephens, 8 Saw. 116; Hicks v. Com., 86 Va. 223; State v. Lung, 21 Nev. 209. (4) The indictment does not charge, in any of the counts, an "attempt," within the meaning of the criminal law, to commit the crime of "obtaining money by false pretenses," etc., and in the absence of such necessary averments the indictment was fatally defective and properly quashed. 1 Bishop's New Crim. Law, secs. 728-731; 1 Wharton, Crim. Law, sec. 173; People v. Murray, 14 Cal. 160; U. S. v. Stephens, 3 Crim. Law Mag. 536; State v. Lung, 21 Nev. 209; Hicks v. Com., 86 Va. 228; In re Schurman, 20 P. 277; State v. Calvin, 90 N.C. 717. (5) The indictment while distressingly prolix, is yet vexatiously vague, and fails in essential specific affirmations, which are always indispensable to inform defendant of the particular act or acts he must defend. 1 Bishop, Crim. Proc. (3 Ed.), secs. 86, 88, 325, 509; State v. Martin, 44 Mo.App. 45; s. c., 108 Mo. 117, State v. Green, 111 Mo. 588; State v. Austin, 113 Mo. 543; State v. Evans, 128 Mo. 412; State v. Stowe, 132 Mo. 204.



This appeal is taken by the State because the trial court, on motion of defendant, quashed the indictment.

The bill of exceptions shows that the motion was "taken up and in all things sustained and that thereupon, the State by its attorney then and there excepted." Final judgment was then entered, holding the indictment insufficient in law and ordering the discharge of defendant.

The indictment covers twenty-four pages of printed matter and consists of five counts, one of which, as they all have a strong family likeness, will be sufficient to notice:

"In the Circuit Court of Ray county, Missouri, October term, 1895.

"State of Missouri, Plaintiff. vs. G. W. Fraker, Defendant.

State of Missouri, County of Ray.] ss.

"The grand jurors for the State of Missouri, duly impaneled, sworn and charged to inquire of offenses within and for the body of the county of Ray and State aforesaid, upon their oaths do present and charge that Geo. W. Fraker, on the 10th day of July, A. D. 1893, at the said county of Ray and State of Missouri, then and there being, did then and there unlawfully and feloniously and with the intent to cheat and defraud The Provident Life Assurance Society of New York, an insurance corporation duly and legally created and...

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