State v. Johnston

• Decision Date: 30 January 1911
• Parties: STATE v. JOHNSTON.
• Court: Missouri Court of Appeals

134 S.W. 38

154 Mo. A. 265

STATE v. JOHNSTON.

Kansas City Court of Appeals. Missouri.

January 30, 1911.

1. CRIMINAL LAW (§ 1020)—APPEAL—APPELLATE DIVISION.

The punishment under Rev. St. 1899, § 1927 (Ann. St. 1906, p. 1312), for obtaining by false pretenses the sum for so obtaining which defendant was prosecuted and convicted, being that for petit larceny, appeal is properly taken to the Court of Appeals.

2. FALSE PRETENSES (§ 31)—INFORMATION— "INDUCED."

The information for obtaining money by false pretenses, alleging merely that the prosecuting witness "was induced" to pay defendant a certain sum, and not that defendant was actually paid said sum, is insufficient.

Appeal from Criminal Court, Jackson County; Ralph S. Latshaw, Judge.

A. W. Johnston was convicted of obtaining money by false pretenses, and appeals. Reversed.

John C. Stearns for appellant. Virgil Conkling and W. S. Gabriel, for the State.

JOHNSON, J.

On information of the prosecuting attorney of Jackson county, defendant was tried and convicted in a justice court on the charge of obtaining $5 from the prosecuting witness by means of false and fraudulent statements and pretenses. A trial in the criminal court, where the cause was taken by appeal, resulted in the conviction of defendant, and he appealed to this court.

Defendant, a book agent, sold the prosecuting witness some books at the price of $120, collected $5 from her, and secured her written obligation for the payment of the remainder of the purchase price. Following the allegations relating to the false and fraudulent representations and pretenses constituting the offense, the information charges that the prosecuting witness, "believing the said statements to be true, and relying thereon, and being deceived thereby, was induced to pay to the said A. W. Johnston the sum of $5 and to sign an order for said books and agree to pay the further sum of $115," etc. The specific offense alleged is "that the said A. W. Johnston well knew the said false and fraudulent statements and pretenses so made as aforesaid by him were false and fraudulent and untrue and were made by him at the time with the intent and for the purpose of defrauding the said Anna S. Welch of the said sum of $5 against the peace and dignity of the state." The date of the offense was May 26, 1909, and the statute relating to obtaining money, goods, etc., by false pretenses then in force was section 1927, Rev. St. 1899 (Ann. St. 1906, p. 1312), which provided that a person convicted of a violation of its provisions "shall be punished in the same manner and to the same extent as for feloniously stealing the money, property or thing so obtained." Speaking of this section, the Supreme Court say in State v. Pickett, 174 Mo., loc. cit. 667, 74 S. W. 845: "Obviously under this section the guilty party was liable to be punished by imprisonment in the penitentiary if the amount of money or property obtained by the false pretense was such as would have sustained a conviction for grand larceny had he stolen it, and, if less, then he is punishable as for petit larceny."

The specific charge on which defendant was prosecuted and convicted is the same, so far as the punishment is concerned, as a charge of stealing $5—petit larceny—and the appeal was properly taken to this court.

Defendant challenges the information on the ground that it fails to allege specifically one of the essential ingredients of the offense of obtaining money by false pretenses, i. e., that defendant actually was paid $5 by the prosecuting witness. The information alleges the prosecuting witness "was induced" to pay that sum to defendant. The rule is fundamental that an indictment or information, to be good, must...