State v. McChesney

• Decision Date: 11 November 1884
• Citation: 16 Mo.App. 259
• Parties: THE STATE OF MISSOURI, Respondent, v. WARREN F. MCCHESNEY, Appellant.
• Court: Missouri Court of Appeals

16 Mo.App. 259

THE STATE OF MISSOURI, Respondent,

v.WARREN F. MCCHESNEY, Appellant.

St. Louis Court of Appeals, Missouri.

Nov. 11, 1884.

APPEAL from the St. Louis Criminal Court, VAN WAGONER, J.

Affirmed.

L. B. VALIANT, for the appellant: The indictment charges no crime; it does not sufficiently inform the defendant of the nature of the offense of which he is accused. It is an attempt at an indictment under section 1561, Revised Statutes 1879, but complies neither with the rules of criminal pleading at common law nor the requirements of that statute.-- The State v. Helm, 6 Mo. 263; The State v. Ross, 25 Mo. 426; The State v. Evers, 49 Mo. 542. 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; and that is an issuable fact so important that, if untrue, the prosecution must fail at the trial.--Archb. Crim. Pl. & Pr. 245, et seq.; Whart. Cr. Law (5th ed.), sects. 250, 251; 1 Bishop's Cr. Proc., (1st ed.) sect. 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. The People, 47 Ill. 468; The State v. Fencher, 71 Mo. 460; The State v. Porter, 75 Mo. 171; The State v. Norton, 76 Mo. 180. The statute requires that “when an indictment is found by the grand jury the names of all the material witnesses must be indorsed on the indictment.”--Rev. Stats. 1879, sect. 1802, p. 304. Communications between attorney and client are privileged.-- Cross v. Riggin, 50 Mo. 335.

THOMAS B. HARVEY, JOSEPH G. LODGE, WILLIAM H. BLISS, and HENRY T. KENT, for the respondent: The indictment is sufficient.-- The State v. Fancher, 71 Mo. 460; The State v. Williams, 77 Mo. 310. The purpose of requiring the name, whether of the defendant or of a third person, is identification.--1 Bish. Cr. Proc. 677; 7 Ired. 27. In stating intent to defraud, it is sufficient to describe the party intended to be defrauded with reasonable certainty.--2 Russ. on Cr. 367; Lowell's Case, 2 East's P. C. 990, sect. 60; Noakes v. The People, 25 N. Y. 386; Fisher v. The State, 4 N. J. L. 169; Vandermark v. The People, 47 Ill. 122; The State v. Black, 31 Texas, 560. Communications between attorney and client are not privileged when the client is seeking advice as to prospective infractions of the law.--Weeks on Attorneys, sect. 166; Whart. Cr. Ev., sect. 504; Gartside v. Outram, 26 L. J. Ch. 113, 114.

LEWIS, P. J., delivered the opinion of the court.

The case, with a few unimportant omissions, is fairly stated by the appellant as follows:-- “The indictment charges that the defendant, on the 13th of September, 1883, in the city of St. Louis, ‘did, with intent, then and there, to feloniously cheat and defraud, unlawfully and feloniously attempt to obtain from certain persons, firms, and corporations, then and there 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 aforesaid unknown, by means and by use of a certain trick and deception, and by means and by use of certain false and fraudulent representations, statements, and pretences, a large sum of money; that is to say: the sum of two thousand dollars, then and there the money and property of said association, contrary,” etc.

Indorsed: “A true bill: Thomas Richeson, foreman. Witnesses: Jas. C. McGinnis, Robt. Wilson.”

Defendant demurred to the indictment on the grounds:--

“1. That said indictment does not state facts sufficient to constitute a crime, or charge the defendant with the commission of acts which constitute a crime against the laws of this state, in this, to wit: said indictment does not set forth the act or acts constituting the alleged trick and deception, and does not state in what the alleged fraud and fraudulent representations, statements and pretences consisted, or of what acts or conduct the defendant is charged, as constituting such alleged trick and deception, false and fraudulent representations, statements, and pretences; neither does it state the name or names of the person, or persons, or corporations defrauded, or attempted to be defrauded; neither does it state that the name or names of such person, or persons and corporations, defrauded, or attempted to be defrauded, or that the person, or persons and corporations, defrauded, or attempted to be defrauded, were unknown to the grand jury.”

“2. The indictment neither states facts descriptive of the offence, as the rules of the common law and general criminal pleading require, nor does it give the names of the persons defrauded, as the form prescribed by the statute requires.

The demurrer was overruled and afterwards the dedefendant filed a plea in abatement, as follows:--

Now comes the defendant, and for his plea in abatement herein, says that he ought not to be required to answer said indictment, because, he says, that in relation thereto, the state has practiced and is practicing towards him a trick and deception, in this, to wit: that, instead of indorsing on said indictment the names of all the material witnesses, as the law directs, the state has indorsed thereon a fictitious name, to wit: Robert Wilson, in lieu of the real name of a witness whose name is to this defendant unknown, with the intent to deceive and mislead the defendant, and deprive him of the fair notice, which the statute in such case made and provided, requires to be given him, and this he is ready to verify. Wherefore, defendant prays judgment if he should be required to further answer said indictment.”

3. “This plea was duly verified by the affidavit of the defendant.

The state demurred to the plea and the court sustained the demurrer.

On the trial, the state introduced evidence tending to prove that in August, 1883, when there was great public interest shown on the subject of enforcing the Sunday feature of the dramshop law of 1883, the question arose as to whether or not the act of 1883 repealed the act of 1857, which authorizes cities, in the county of St. Louis, to license beer saloons to keep open on Sunday, when thereto authorized by a vote of the people of the city. That this was a question in which the Brewers' Association, which was a voluntary association, composed of all the brewers but one in the city, was greatly interested, and members of the association were being prosecuted in the court of criminal correction for selling beer on Sunday, and Mr. J. C. McGinnis was their attorney. That, in this emergency, defendant sent for one Zach. J. Mitchell, an attorney who was in the employ of the Saloon-keepers' Association, of St. Louis County, and gave Mitchell to understand that he, defendant, was in the employ of the Brewers' Association, and desired to consult with him, Mitchell, professionally on this question. The result was, Mitchell unfolded to defendant a plan by which the question could quickly be carried to the supreme court, which was this, to-wit: a proposition was already on foot in the city of St. Ferdinand, or Florissant, to petition the city council of that city to order an election under the provisions of the act of 1857; if the council should order the election, an application to the supreme court would lie for a quo warranto; if the council should refuse to order the election, an application for a mandamus would lie to compel them to do so; thus the naked question of the validity of the act of 1857 could be brought directly to the supreme court. Mitchell was willing to undertake the suit for a fee of $1,000; McChesney was to submit the matter to the gentlemen whom he professed to represent (but whose names he did not give, but who, he gave Mitchell to understand, were connected with the Brewers' Association, but did not wish to be known), and ascertain if they would be willing to incur the expense, and employ counsel to carry this question in this way to the supreme court. That this was a subject of discussion between defendant and Mitchell, at intervals, for several weeks, but nothing was settled, and in the meantime the test case in the court of criminal correction was decided in favor of the brewers; that after that decision defendant went to the attorney for the brewers, McGinnis, and told him that a movement was on foot in the city of St. Ferdinand, or Florissant, by the prohibitionists, to petition the city council to order an election under this law of 1857, which the council was to refuse, and then a mandamus was to be applied for, which would bring the question to the supreme court; and that defendant suggested that the movement ought to be stopped, and said that he had been out to Florissant and seen ‘those people out there’ (by which expression the witness understood he meant the city council of St. Ferdinand, although he did not say who he meant), and that the thing could be stopped for $2,000, which he thought the brewers ought to pay; that of this $2,000 part was to be paid to ‘those people out there,’ and part to certain parties, not named, in the city of St. Louis; that McGinnis refused to submit the proposition to the Brewers' Association, but, at defendant's request gave him the names of the officers of the Brewers' Association, saying, that if he desired to do so, he could submit the proposition to them himself. McGinnis did not submit the proposition to the Brewers' Association, but mentioned it to some of the members of the association, and afterwards was summoned before the grand jury and gave his evidence in this case.

That on the 29th of September, 1883, a petition of citizens was presented to the city council of St. Ferdinand, for an election to be held under the law of 1857, which was granted by the council; the election was ordered and held, 15th of October, 1883, and...