State v. Metsch

• Decision Date: 08 October 1887
• Citation: 15 P. 251,37 Kan. 222
• Parties: THE STATE OF KANSAS v. CHARLES METSCH
• Court: Kansas Supreme Court

15 P. 251

37 Kan. 222

THE STATE OF KANSAS v. CHARLES METSCH

Supreme Court of Kansas

October 8, 1887

Appeal from Ellsworth District Court.

PROSECUTION for obtaining money under false pretenses. Verdict, guilty new trial denied. May 13, 1887, the court sentenced the defendant Metsch to imprisonment for two years in the state penitentiary, and to pay the costs of the prosecution. He appeals. The facts are sufficiently stated in the opinion.

Judgment reversed, and cause remanded.

S. P Harrison, for appellant; Irwin Taylor, of counsel.

S. B Bradford, attorney general, and E. A. Austin, for The State.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

Charles Metsch was prosecuted in the district court of Ellsworth county, upon a charge of obtaining money under false pretenses from the State Savings Association of Ellsworth, and was convicted. The information charged that he obtained $ 246.80 from the association upon the security given by chattel mortgages upon one bay horse ten years old, three cows, one bay horse five years old, one bay gelding three years old, one bay gelding four years old, one bay horse seven years old, one bay horse nine years old, one sorrel mare eight years old, and one sorrel gelding six years old. It is alleged that in negotiating the loans he pretended that he was the owner of the horses and cows described, and that they were kept on the farm of one Boggs, about four and one-half miles from the city of Ellsworth, and that the mortgages executed by him as security for the loans were valid. It is alleged, however, that Metsch was not the owner of the horses or the cows, and that his representations regarding them were designedly and wholly false. At the trial it was disclosed that three mortgages were executed by Metsch to the State Savings Association, which were designated as "A," "B," and "C." The state did not put in evidence the mortgages "B" and "C," nor offer evidence of any false pretenses in obtaining the money secured by those mortgages. The prosecution relied only on the pretenses connected with the "A" mortgage, which was given on September 1, 1886, to secure the payment of $ 43.25, and the only property therein described was, "one bay horse ten years old, weight about twelve hundred pounds, white in forehead, and named Jim," and "three cows of different ages, sizes and colors, now kept on the T. B. Boggs farm, four and one-half miles southeast of Ellsworth city."

We are of the opinion that the conviction should not stand. The testimony brought up in the record, (and there is a statement that it contains all that was given,) is clearly insufficient to sustain the verdict of the jury. There is no testimony that Metsch made any representations or pretenses in negotiating the mortgages which have been mentioned. Dolde the secretary of the association, testified that he negotiated and filled out the "B" and "C" mortgages, and loaned the defendant money on them. He also testified that he inquired of the defendant whether he owned the property, and whether there were any liens existing against it; but in no case does he state what reply, if any, was made by Metsch to these inquiries. No other witness undertook to testify in relation to obtaining the money. Then, again, there is no testimony that the $ 43.25, borrowed upon the security of the "A" mortgage, was obtained upon the strength of any representations or pretenses made when it was borrowed. Indeed, it does not appear, except by the remotest inference, that Metsch obtained any money upon the "A" mortgage. The witness Dolde stated that he loaned him money upon chattel mortgages, but the transactions that he had with the defendant were loaning upon the security of the "B" and "C" mortgages, which are entirely out of the case. He stated that a Mr. Hale made out the "A" mortgage, but Mr. Hale did not testify in the case, nor did anyone else testify that the $ 43.25, which purported to have been secured by the "A" mortgage, was paid by reason of any representation or pretense made by...