State v. McChesney

• Decision Date: 15 November 1886
• Parties: STATE v. McCHESNEY.
• Court: Missouri Supreme Court

1 S.W. 841

90 Mo. 120

STATE v. McCHESNEY.

Supreme Court of Missouri.

November 15, 1886.

1. FALSE PRETENSES — INDICTMENT — PERSONS CHEATED — VOLUNTARY ASSOCIATION — REV. ST. Mo. 1879, § 1561.

An indictment under Rev. St. Mo. 1879, § 1561, for cheating, which sets out that the defendant attempted to cheat certain "persons, firms, and corporations, composing a voluntary association known as the `Brewers' Association of St. Louis and East St. Louis,' a more particular description of which said persons, firms, and corporations and of said association is to the jurors unknown," etc., is bad, because it does not sufficiently set forth the names of the persons who were to be cheated.

2. SAME — DESCRIPTION OF THE "TRICK," ETC.

In an indictment for attempted cheating, where the names of the persons against whom the attempt was made are unknown, that fact should be set out, and the "trick," etc., made use of should be alleged with particularity; and an indictment under Rev. St. Mo. 1879, § 1561, charging that the accused, at a certain time and place, "did, with intent," etc., "to feloniously cheat and defraud, unlawfully," etc., "attempt to obtain from certain persons," etc., "by means and by use of a certain trick and deception, and by means and by use of certain false and fraudulent representations," etc., "a large sum of money," etc., is bad, because it does not sufficiently set forth the trick or device of which the defendant made use.

Appeal from St. Louis court of appeals.

Indictment for attempted cheating.

Section 1561, Rev. St. Mo. 1879, under which the defendant was prosecuted, after defining the offense, 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 use of a cheat or fraud or trick or deception, or false or fraudulent representation, or false pretense or confidence game, or false and bogus check or instrument, or coin or metal, as the case may be, contrary to the form of the statute," etc.

Thoroughman & Valliant, for appellant, McChesney.

When the statute prescribes a form, it must be strictly followed, or else the offense must be charged as at common law. Nichols v. State, 46 Miss. 284, and see page 288.

If it were permitted, in the use of this statutory form, to omit the names of the persons attempted to be defrauded, on the ground that they were unknown, then the indictment should state that the names were unknown. Archb. Crim. Pl. & Pr. 245 et seq.; Whart. Amer. Crim. Law, (5th Ed.) §§ 250, 251; 1 Bish. Crim. Pr. (1st Ed.) § 297.

In all the cases in which indictments have been held to be sufficient under this statute, the names of the persons alleged to have been defrauded are given. Morton v. People, 47 Ill. 468; State v. Fancher, 71 Mo. 460; State v. Porter, 75 Mo. 171; State v. Norton, 76 Mo. 180.

If the statute had only created the crime, and had not attempted to make any change in the form of the indictment, it is very clear that an indictment for the crime created by the statute would not have been good unless it set forth the acts of the defendant constituting the trick or deception, and his representations and pretenses which are alleged to be false, to the end that the court in the first instance might determine whether or not the acts charged constituted the statutory offense; and, secondly, that the defendant might know with what he was charged. State v. Helm, 6 Mo. 263; State v. Ross, 25 Mo. 426; State v. Evers, 49 Mo. 542.

The Attorney General, Joseph G. Lodge, William H. Bliss, and Henry T. Kent, for the State.

We maintain that the indictment is good in every particular. The supreme court has repeatedly decided, since section 1561 of the Revised Statutes was incorporated in our laws, that just such an indictment as this, under that section, was good. State v. Fancher, 71 Mo. 460; State v. Williams, 77 Mo. 310.

It has been objected that the indictment is defective because it does not state the names of the persons, firms, and corporations composing the Brewers' Association of St. Louis and East St. Louis. It does state, however, "that a more particular description of which said persons, firms, and corporations, and of said association, is to the jurors aforesaid unknown." There could be no surer compliance with the rules of pleading under such circumstances. And, in all seriousness, is it not absurd to assert that any such alleged defect in the indictment "tends to the prejudice of the substantial rights of the defendant upon the merits?" Rev. St. § 1821.

Since, however, the appellant contends that the said alleged defect is material, we submit the following decisions and argument on the point:

"The charge must contain such a description of the crime that the defendant may know what crime he is called upon to answer; that the jury may appear to be warranted in their conclusion of `guilty' or `not guilty' upon the premises delivered to them; and that the court may see such a definite crime that they may apply the punishment which the law prescribes." DE GREY, C. J., in Rex v. Horne, Cowp. 672; 1 Bish. Crim. Pr. 507. "Both the jury and the prisoner ought to know precisely what the charge is which the former have to investigate, and the latter has to meet." COCKBURN, C. J., in Rex v. Jarrold, Leigh & C. 301. The pleader is not held to such strict rules as to defeat the ends of justice. 1 Bish. Crim. Pr. 526; Moyer v. Com., 7 Pa. St. 439. The purpose of requiring the name, whether of the defendant or of a third person, is identification. 1 Bish. Crim. Pr. 677; State v. Angel, 7 Ired. 27.

In stating intent to defraud, it is sufficient to describe the party intended to be defrauded with reasonable certainty. 2 Russ. Cr. 367.

In Lovell's Case, 2 East, P. C. 990, § 60, the indictment alleged an intent to defraud Messrs. Drummond & Co. by the name of Mr. Drummond, Charing Cross, and the judge held it was not necessary to describe the party with more particularity; for if any person could be intended by the words, who that person was, and whether he was the object of the meditated fraud, were matters for the consideration of the jury.

In the case of Noakes v. People, 25 N. Y. 386, where the intent was averred (in uttering a forgery) to defraud the Meridian Cutlery Company, the court say: "The company was capable of being defrauded, and might be the subject of a fraud; and the designation `Meridian Cutlery Company' was a sufficient designation of the body, partnership, or persons intended to be defrauded." And see Fisher v. State, 40 N. J. Law. 169.

In State v. Anderson, 3 Rich. 174, the court say, in the description of third persons in an indictment, all that is necessary is "certainty to a common intent, or convenient certainty." "A third person may, however, be described by any particulars which furnish sufficient identification; and if, instead of a true name, a well-known nickname to which the person answers, an acquired name, or an addition by which such person is usually known be used, it will be sufficient."

In Vandermark v. People, 47 Ill. 122: "It is a rule of pleading that the name of the person receiving the injury, when known, must be set out in the indictment, that the accused may know of what particular offense he is charged; but when the person is described by the initials of his Christian name, and he is as well known by that as his full name, the object of the rule is obtained, and no error is committed. And it is a question for the jury whether he was known in the community as well by that as his full name."

State v. Black, 31 Tex. 560: "The rigid rule of the common law is not required in naming an injured party whose name is used in indictments, as in the case of defendants." State v. Seely, 30 Ark. 162; State v. Brite, 73 N. C. 26.

In the case of Mead v. State, 26 Ohio St. 508, the defendant was indicted for the murder of one Elisha Davidson, and the proof was that he murdered one Elijah B. Davidson. The Code of that state provides that a variance shall not be fatal unless it is "material to the merits of the case, or prejudicial to the defendant." The court said it was for the jury to determine whether the person proved to have been murdered was the same as the one mentioned in the indictment; and, if so, the variance, as matter of law, was immaterial.

Section 1821, Rev. St. Mo., provides that no indictment shall be deemed invalid for "any defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits." In the case of State v. Craighead, 32 Mo. 561, which was an indictment for murder, the defendant was charged with an assault upon one Dunlop, and by the assault endangering the life of "said Craighead." The court held the variance a mere clerical error, and sustained the indictment. See, also, State v. Dalton, 27 Mo. 13; State v. Cox, 32 Mo. 566; State v. Duclos, 35 Mo. 237; State v. Barker, 64 Mo. 282.

"A bastard should be described of the name he has gained by reputation. Describing him of his mother's name, he not having gained that name by reputation, would be bad." "If a party be known by one name as well as another, he may be described by either."...