State v. Morgan

• Decision Date: 14 November 1892
• Citation: 112 Mo. 202,20 S.W. 456
• Parties: STATE v. MORGAN.
• Court: Missouri Supreme Court

20 S.W. 456

112 Mo. 202

STATE v. MORGAN.

Supreme Court of Missouri.

November 14, 1892.

FALSE PRETENSES — INDICTMENT — CONSTITUTIONAL LAW — TITLE OF ACT.

1. Rev. St. 1879, § 1561, provides that in an indictment of one charged with fraudulently obtaining or attempting to obtain property it shall be a sufficient description of the offense to charge that the accused did "unlawfully and feloniously obtain or attempt to obtain * * * money or property by means and by use of a cheat, or fraud, or trick." Held, on the trial of one charged with attempting to obtain money by a trick, that an indictment charging that defendant "did unlawfully and feloniously, with intent to cheat, * * * attempt to obtain * * * property * * * by means of and by use of a cheat, a fraud, a trick, a deception, false and fraudulent representations and statements, and a bogus metal," was sufficient, without stating of what the "cheat, fraud," etc., consisted.

2. Rev. St. 1879, § 1561, in so far as it dispenses with the details of the "cheat, fraud," etc., is not in conflict with the provision of the constitution providing that "in criminal prosecutions the accused shall have the right to demand the nature and cause of the accusation."

3. Rev. St. 1879, § 1561, is entitled "Cheats, frauds, bogus checks," etc. The first part of the section declares the crime, and the last part declares what shall be a sufficient charge in the indictment. Held, that the last part of the section was not in violation of Const. art. 4, § 28, providing that "no bill shall contain more than one subject, which shall be clearly expressed in the title."

Sherwood, C. J., and Brace and Gantt, JJ., dissent.

In banc. Appeal from circuit court, Macon county; ANDREW ELLISON, Judge.

George Morgan, alias W. A. Adkins, was convicted of an attempt to obtain money by trick, and appeals. Affirmed.

C. T. Noland, for appellant. The Attorney General, for the State.

BLACK, J.

The defendant was indicted and convicted for an attempt to obtain money from Hiram K. Bargar by a trick, etc. For all the purposes of the questions raised here it is sufficient to say that the evidence tends to establish the following facts: The defendant, Adkins, under the assumed name of George Morgan, called upon Hiram K. Bargar, and represented that he and his partner were from Arizona; that his partner was a half-breed Indian, and the owner of a valuable gold mine; that they left Arizona in search of one Andrew Bargar, whom they had known there; that the Indian proposed to give Andrew a fourth interest in the mine if he would take charge of it. The defendant stated further that he had been to Iowa, and received information of the death of Andrew; that he called upon Hiram K. upon the supposition that he was a brother of deceased. By these and like representations the defendant induced Bargar to go to Macon City for the purpose of consulting with the Indian. On the way the defendant said the Indian did not like to put up at an hotel, and for that reason they were camping. The defendant and Bargar went to a tent in the woods, and there saw the defendant's partner, who was dressed and painted after the fashion of an Indian. After considerable maneuvering the defendant took from a pile of leaves a pair of scales, a brace, some bits, and two pieces of metal represented to be gold bricks. The defendant said he wanted Bargar to estimate their value, and to that end defendant and Bargar weighed them, then bored into the brick, and saved the borings. These they took to two silversmiths, who melted them, and pronounced them gold, though the smiths differed as to the fineness. In the mean time defendant had proposed to Bargar that they take the bricks to Chicago, and sell them. Defendant saw the alleged Indian, and made report that he was getting suspicious. To allay his suspicions the defendant proposed that they leave with him some money, mentioning different amounts. It was finally agreed that Bargar should go home and get $1,500 to leave with the Indian, and the defendant and Bargar would then go on to Chicago, and dispose of the bricks. Bargar went home, but became awakened to the fact that it was all an effort to swindle him out of his money. The arrest followed. The bricks turned out to be copper, and defendant proved to be a resident of St. Louis.

The indictment is founded on section 1561, Rev. St. 1879, the latter part of which provides: "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 by use of a cheat, or fraud, or trick, or deception, or false and fraudulent representation or statement, or false pretense, or confidence game, or false or bogus check, or instrument, or coin, or metal, as the case may be, contrary," etc. The indictment, omitting the caption, reads: "The grand jurors for the state of Missouri, summoned from the body of said Macon county, impaneled, charged, and sworn, upon their oaths present and charge that George Morgan, alias W. A. Adkins, late of the county aforesaid, on the 24th day of May, 1889, at the said county of Macon, state aforesaid, did unlawfully and feloniously, with intent to cheat and defraud one Hiram K. Bargar, attempt to obtain from said Hiram K. Bargar the property of said Hiram K. Bargar, to wit, fifteen hundred dollars, lawful money of the United States, of the value of fifteen hundred dollars, of the property of Hiram K. Bargar, by means of and by use of a cheat, a fraud, a trick, a deception, false and fraudulent representations and statements, and a bogus metal, contrary to the form of the statutes, and against the peace and dignity of the state." The questions made in this court arise out of the action of the trial court in overruling the motion in arrest, which sets out the following grounds: "(1) The indictment does not state of what the cheat, the fraud, the trick, the deception, the false and fraudulent representations, and the bogus metal consisted, or what acts and words constituted such cheat, fraud, etc. (2) The indictment does not sufficiently set out and describe the money, property, or thing which the defendant attempted to obtain from Hiram K. Bargar." The second of these grounds is not true in point of fact, for the indictment states that defendant attempted to obtain from Bargar $1,500, lawful money of the United States, the property of said Bargar. As to the first ground set out in the motion, it is true that the indictment does not set out the acts and statements constituting the cheat, the fraud, the trick, the deception, the false and fraudulent representations, or the bogus metal; but the statute undertakes to say what shall be a sufficient description of the offense, and this indictment complies with the terms of the statute in this respect. The question therefore resolves itself into this: whether the statute, in so far as it dispenses with a statement of these details, is in conflict with those provisions of the constitution which provide that a prosecution like this must be "by indictment," and that "in criminal prosecutions the accused shall have the right to demand the nature and cause of the accusation." This prosecution is by indictment, and it is everywhere held, under like constitutional provisions, that the legislature may prescribe a form of indictment, and in doing so may dispense with averments which would be held necessary and essential to a good common-law indictment. The limitation, and only limitation, is that the indictment must furnish to the accused "the nature and cause of the accusation." It is a sacred right to the accused that he may know from the indictment of what he is charged, and be prepared to meet the exact charge presented against him. It must be obvious, therefore, that the question here is not, what is necessary to constitute a good common-law indictment? but the question is, does this indictment on its face give the defendant notice of the nature and cause of the accusation? This question came before this court on this statute in State v. Fancher, 71 Mo. 461, more than 10 years ago, on an indictment not materially different from the one now in question. It was then held that it was not necessary, in order to inform the accused of the nature and cause of the charge against him, that the indictment should set out and detail the facts and circumstances constituting the cheat, fraud, etc.; and it was accordingly held that the indictment was free from constitutional objections. That ruling was followed in several subsequent cases. State v. Connelly, 73 Mo. 235; State v. Williams, 77 Mo. 311; State v. Norton, 76 Mo. 180; State v. Dennis, 80 Mo. 590; State v. Bayne, 88 Mo. 606. It was held in State v. McChesney, 90 Mo. 120, 1 S. W. Rep. 841, that the indictment should set out the name of the person defrauded or attempted to be defrauded;...