State v. Newell

• Decision Date: 30 November 1822
• Parties: THE STATE v. NEWELL.
• Court: Missouri Supreme Court

1 Mo. 248

THE STATE

v.NEWELL.

Supreme Court of Missouri.

November Term, 1822.

ERROR FROM THE CIRCUIT COURT OF ST. LOUIS COUNTY.

McGIRK, C. J.

This was an indictment for obtaining bills of exchange by false pretenses. There are three counts in the indictment, for three several and distinct offenses. To this indictment there was a general demurrer, and the demurrer was, by the Court, sustained, and judgment for the defendant; to reverse which, is the object of the present writ of error. The assignment of errors is general. To sustain the judgment of the Circuit Court, two points are made by the counsel for Newell. First: That the obtaining of bills of exchange by false pretenses, is not within the statute on which he is indicted. And secondly: The pretenses by which they are said to have been obtained, are not such as contemplated by the statute, and that they are not well described.

The words of the statute on which this indictment seems to be predicated, are: “If any person or persons, knowingly and designedly, by any false pretense or pretenses, obtain from any other person or persons, moneys, goods, or merchandise, or effects whatever, with intent to cheat or defraud such person or persons of the same, he shall, on conviction,” &c. The first question is, will the word “effects” embrace a bill of exchange? This appears to be a question of construction. The design of the Legislature seems to have been to embrace every kind of case; they, therefore, after mentioning all sorts of personal things in possession, say, or effects whatever; no doubt intending to embrace something more than money, goods, or merchandise. By name, effects will embrace lands, tenements, &c Effects in law must mean every thing which is subject to the laws of property and ownership, whether real or personal; and of the personalty, whether of possession or in action. A bill of exchange is not money, but is a security for money, because it contains the proof that money is due, and a promise to pay it. It is also a species of merchandise, or rather answers the end of money, in passing like money. It is effects, within the meaning of the statute; and this Court have already decided, that promissory notes are effects; (see the case of the Bank of Missouri v. Douglass.) But it is said, these bills are not effects, till they have passed out of the hands of the drawer. My opinion is, that if A., by false pretenses, cheats B. into making a bill of exchange, to be delivered to him, and to be used by him, that this is cheating B. of effects, or means of living. The statute was made to prevent the wicked and cunning part of mankind from preying on the less wicked and cunning; to protect the unwary; to be the guardian of the ignorant and unwise. The end and the means by which the fraud is effected, is perfectly immaterial. Experience has shown that men grow cunning in new devices as speedily as law can be made to prohibit the old. The statute, therefore, uses general words, and prohibits the act to be done, without regarding the means by which it is effected.

The case of The King v. Phips, from 2 East's Crown Law, 599, has been relied on. That was a case where a statute punished robbery of promissory notes, being the property of any other person than the robber's, &c. Phips was indicted under this statute. The case turned out to be, that the prisoner had, by threats of death, compelled the person to make the note and to deliver it. There the question was, whether this was the property of another, within the statute. The court held, it was not a robbery of a promissory note, but a procuring a note by duress, and that the duress was the principal part of the transaction. That offense was not quite like the offense here charged, and the case of Phips is not exactly in point. Here, the charge is, obtaining effects by fraud, and no question is made about duress or force; but still the question is made, could these bills be of any value while they remained in the possession of the prosecutor? The answer is, that if they never had been delivered, they never would have been of value. But the inducement which the prosecutor had to make and deliver them, was false and fraudulent; he made and delivered the bills, which created a liability, and this liability affected his means of living, or his rights, in a high degree. If the bills passed from Newell, Orton could not even avoid them, in the hands of innocent holders. The object of the statute was, to throw a mantle of protection round men's rights, whether in possession or action. Here, by false pretenses, a right or chose in action has been obtained; it is an effect, and the transaction is, in an eminent degree, the object of criminal law. And this opinion, as to the exposition of “effects,” is not singular to this court. The case came up directly, in the Court of Ex. Chamber, before the twelve Judges. The case is the King v. Arbett, reported in 2 Leach's Cr. Cases, 958, decided in 1808. The indictment is upon the statute of 15...