State v. McChesney

• Citation: 1 S.W. 841,90 Mo. 120
• Parties: The State v. McChesney, Appellant
• Decision Date: 15 November 1886
• Court: United States State Supreme Court of Missouri

1 S.W. 841

90 Mo. 120

The State v. McChesney, Appellant

Supreme Court of Missouri

November 15, 1886

[Copyrighted Material Omitted]

Appeal from the St. Louis Court of Appeals.

Reversed.

L. B Valliant for appellant.

(1) The indictment charges no crime. It does not sufficiently inform the defendant of the nature of the offence of which he is accused. It does not comply with the rules of criminal pleading at common law, nor with the requirements of section 1561, Revised Statutes. State v. Helm, 6 Mo. 263; State v. Ross, 25 Mo. 426; State v. Evers, 49 Mo. 542. It is better, under the statute, to state of what the false pretense, or trick, consisted. State v. Porter, 75 Mo. 171. The statute ought to be strictly construed. To hold this indictment good is to go contrary to every principle laid down in State v. Hayward, 83 Mo. 299. The indictment does not give the name of the victim nor a description of the acts constituting the offence. If it were permitted in the use of the statutory form of indictment (sec. 1561) 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. Arch. Crim. Pl. and Pr., 245, et seq.; Wharton's Am. Crim. Law [5 Ed.] secs. 250, 251; 1 Bish. Crim. Proc. [1 Ed.] sec. 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.

B. G. Boone, Attorney General, Joseph G. Lodge, William H. Bliss and Henry T. Kent for the state.

The indictment fully complies with the law and is good in every particular. State v. Fancher, 71 Mo. 460; State v. Williams, 77 Mo. 310. The failure to insert the names of the persons, firms and corporations composing "The Brewers' Association of St. Louis and East St. Louis," did not tend to prejudice the substantial rights of the defendant upon the merits. R. S., sec. 1821. Since the appellant, however, contends that the said alleged defect is material, the following decisions are cited on that point: Rex v. Horne, Cowp. 672; 1 Bish. Crim. Proc. 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." 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. Proc. 526; Moyer v. Commonwealth, 7 Barr, 439. The purpose of requiring the name, whether of the defendant or of a third person, is identification. 1 Bishop Crim. Proc. 677; 7 Iredell [Law] 27. In stating intent to defraud, it is sufficient to describe the party intended to be defrauded with reasonable certainty. 2 Russell on Crimes, 367. In Lowell's case, 2 East P. C. 990, sec. 60, the indictment alleged an intent to defraud Messrs. Drummond & Company, 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. Noakes v. People, 25 N.Y. 386; Fisher v. State, 40 N.J.L. 169; State v. Anderson, 3 Richardson, 174; Vandermark v. People, 47 Ill. 122; State v. Black, 31 Tex. 560; State v. Seely, 30 Ark. 162; State v. Brite, 73 N.C. 26; Mead v. State, 26 Ohio St. 508. Section 1821, Revised Statutes of Missouri, 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.

OPINION

Norton, J.

The defendant was tried in the criminal court of the city of St. Louis, on an indictment founded on section 1561, Revised Statutes, and was convicted. From the judgment of conviction he appealed to the St. Louis court of appeals, where it was affirmed, and from that judgment he appeals to this court.

The first question which the record presents for our determination, relates to the sufficiency of the indictment, the sufficiency of which was questioned in the trial court by a demurrer to it, which was overruled. Omitting the formal parts of the indictment, it is as follows: It charges that defendant, on the thirteenth 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 pretenses, 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.

Testing this indictment by the rules of the common law, which prescribe the averments necessary to be made in an indictment it would unquestionably be insufficient. State v. Evers, 49 Mo. 542; State v. Ross, 25 Mo. 426; State v. Helm, 6 Mo. 263. While this seems to be conceded by counsel, they nevertheless claim the indictment to be good and sufficient, by reason of section 1561, Revised Statutes, which is as follows:

"Section 1561. Every person, who, with intent to cheat and defraud shall obtain, or attempt to obtain, from any other person or persons, any money, property or other valuable thing whatever, by means or by use of any trick or deception, or false and fraudulent representation or statement, or pretense, or by any other means, or instrument, or device, commonly called the 'confidence game,' or by means or by use of any false or bogus check, or by any other written or printed, or engraved instrument, or spurious coin, or metal, shall be deemed guilty of a felony, and, on conviction, be punished by imprisonment in the penitentiary not less than two years. In every indictment under this section it shall be deemed and held sufficient description of the offence 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 by use of a cheat, or fraud, or trick, or deception, or false or fraudulent representation, or false pretense, or confidence game, or false or bogus check, or...