State v. Hubbard

• Decision Date: 02 December 1902
• Parties: STATE v. HUBBARD.
• Court: Missouri Supreme Court

70 S.W. 883

170 Mo. 346

STATE v. HUBBARD.

Supreme Court of Missouri, Division No. 2.

December 2, 1902.

FALSE PRETENSES — INDICTMENT — REPRESENTATIONS AS TO PROPERTY — STATEMENT OF VALUE — DESCRIPTION OF PROPERTY.

1. An indictment alleging that defendant falsely represented that he was the owner of certain cattle in order to obtain a loan from a bank on a mortgage thereon was not objectionable for failure to allege that defendant represented the value of the cattle, or that they were good security for the loan, since the court would take judicial notice that such cattle had more than nominal value, which was all that was required to establish the crime.

2. An indictment alleging that defendant falsely represented himself to be the owner of "twenty-two steer cattle" an an inducement to prosecutor to loan him a certain sum on a mortgage thereon was not objectionable for failure to more particularly describe such cattle.

3. An indictment for false pretenses, alleging that defendant made certain representations to prosecutor, by which the latter was induced by such pretenses to loan defendant certain money, but failing to allege that prosecutor "did" loan the money to defendant, was fatally defective.

Appeal from circuit court, Hickory county; Argus Cox, Judge.

Walter Hubbard was convicted of obtaining money under false pretenses, and he appeals. Reversed.

Lay & Lay, for appellant. The Attorney General and Jerry M. Jeffries, for the State.

BURGESS, J.

The defendant was indicted, convicted, and his punishment fixed at four years in the penitentiary, under section 3564, Rev. St. 1889, for obtaining $550 from the Hickory County Bank, through its president, W. H. Liggett, by means of false representations and pretenses. The indictment charges: "That Walter Hubbard, on or about the 22d day of April, 1898, at the said county of Hickory and state aforesaid, did then and there unlawfully, feloniously, and designedly, with intent to cheat and defraud a certain private bank organized under and by virtue of the laws of Missouri, to wit, the Hickory County Bank, did falsely pretend and represent to one W. H. Liggett, the president of said bank, that the said Walter Hubbard was then the owner of twenty-two steer cattle, and that said cattle were then on the farm of his, the said Walter Hubbard's, father, in St. Clair county, Mo.; and the said W. H. Liggett, believing the said false pretenses and representations to be true, and being deceived thereby, was induced by the said false pretenses and representations, so made as aforesaid, to loan to said Walter Hubbard, upon a certain chattel mortgage then and there executed by said Walter Hubbard, purported to convey and sell to said bank said steer cattle to secure the payment of said loan, the sum of five hundred and fifty dollars, of the value of five hundred and fifty dollars, the money and property of said Hickory County Bank, and the said Walter Hubbard, by means of the false pretenses and representations aforesaid so made to the said W. H. Liggett as aforesaid, feloniously did obtain and receive of and from said W. H. Liggett the said sum of five hundred and fifty dollars, the money and property of said Hickory County Bank, with the intent him, the said W. H. Liggett, and it, the said Hickory County Bank, then and there to cheat and defraud of the same; whereas, in truth and in fact the said Walter Hubbard was not then and there the owner of said twenty-two steer cattle on the farm of his father in St. Clair county, Mo., or elsewhere, and had no right to mortgage any such cattle, — all of which the said Walter Hubbard then and there well knew, — against the peace and dignity of the state."

Several objections are urged against the indictment. It is said that it is bad for the want of an allegation that defendant represented the value of the mortgaged cattle, or that they were good security for the loan, or unincumbered; and the case of State v. Barbee, 136 Mo. 440, 37 S. W. 1119, is relied upon as sustaining that contention. But there is a very material difference between the facts in that case and the case at bar, in this: In that case the indictment alleged that the defendant, in order to cheat and defraud the Farmers' Bank of Polo out of the sum of $329.75, falsely and fraudulently represented that he was the owner of a certain promissory note on one William Watson, but did not allege the amount of the note, or when due and payable, or that the payor was solvent; and upon these and other grounds the indictment was held invalid. With respect to the "twenty-two steer cattle" which the indictment under consideration avers defendant represented he owned, and which were then on the farm of his father in St. Clair county, courts will take judicial notice that they were of very much more than a nominal value; while a promissory note, in the absence of proof of the solvency of the maker, has no pecuniary value as such. A statement or representation that a person is the owner of a certain number of steer cattle, made for the purpose of obtaining the loan of money, if believed, might readily induce the loan, because of the general knowledge that steer cattle have a pecuniary value much more than nominal, although their proximate value may not be known to the loaner; but no such rule prevails with respect to a promissory note, in the absence of some evidence that the promisor is solvent. This point is therefore untenable.

It is also said that the...