State v. Norton

• Decision Date: 31 October 1882
• Citation: 76 Mo. 180
• Parties: THE STATE v. NORTON, Appellant.
• Court: Missouri Supreme Court

76 Mo. 180

THE STATE

v.NORTON, Appellant.

Supreme Court of Missouri.

October Term, 1882.

Appeal from Jackson Circuit Court.--HON. S. H. WOODSON, Judge.

REVERSED.

Indictment for unlawfully and feloniously obtaining from one Calvin Morris the sum of $100, as the indictment alleged “by means and by use of a cheat and a fraud, and a false and fraudulent representation, and false pretense, and confidence game, and a false and bogus check and instrument or bond” with intent to cheat and defraud said Morris. The trial court instructed the jury that if the defendant did obtain the confidence of Morris and did then and there obtain and receive from said Morris $100 belonging to said Morris, by means and by use of a cheat and a fraud, or false and fraudulent representation or confidence game, or a false or bogus check or instrument or bond, then they should find the defendant guilty as charged in the indictment, and assess his punishment, etc.

J. W. Beebe for appellant.

The intent to cheat and defraud is a part of the statutory definition of the offense for which appellant was indicted, and is the very essence of it. Every act described in the instruction may be committed without a guilty intent. But the instruction proceeds upon the theory that if the act is found to have been committed then the guilt of the accused follows as a necessary presumption of law. This was manifest error, for the question of guilty intent is a question of fact for the jury, and must in all cases be submitted to them. Arch. Crim. Plead. and Prac., (7 Ed.) 387; State v. Stewart, 29 Mo. 419; State v. Scott, 48 Mo. 425; State v. Horner, 48 Mo. 522; Stokes v. People, 53 N. Y. 179; Brown v. People, 16 Hun. 535; State v. Fancher, 71 Mo. 460; 1 Whart. Crim. Law, (7 Ed.) 712; Owens v. Rector, 44 Mo. 389; Ross v. Crutsinger, 7 Mo. 245; State v. Matthews, 20 Mo. 55; Reg. v. Dearing, 20 L. T. N. S. 680; 17 W. R. 807; 11 Cox C. C. 208; Reg. v. Waller, 10 Cox C. C. 360; Rojas v. State, 8 Texas App. 740; Rex v. Horner, 1 Leach C. C. 270: Ham v. Barrett, 28 Mo. 388.

D. H. McIntyre, Attorney General, for the State.

There was no error in the instruction. The words “cheat” and “defraud” necessarily imply the evil intent. People v. Herrick 13 Wend. 91. Nor was there error in receiving the evidence of Speers as to the value and character of the bond. It was necessary to prove these as much as to prove that the tools employed in effecting the opening of a safe or the entrance to a house are burglars' tools, or that the instrument used in making a felonious assault is a deadly weapon.

I.

SHERWOOD, C. J.

The defendant was indicted under section 1561, Revised Statutes 1879. The indictment is good, and is in form heretofore approved by this court. State v. Fancher, 71 Mo. 460; State v. Connelly, 73 Mo. 235.

II.

It is very clear that the court when instructing the jury should have submitted the point as to whether the acts charged in the indictment, and testified to at the trial were done “with intent to cheat and defraud.” The obtaining of money or property with such intent is the very gist of the offense. State v. Fancher, supra. Without such intent there can be no violation of the statute. If there could be, then with equal propriety could it be claimed, that taking the goods of another without larcenous intent would constitute the crime of theft. If any support were required for so obvious a position, the authorities cited by defendant's counsel could abundantly furnish it.

III.

There was no impropriety in permitting Chief of Police Speers to testify what he knew touching the bogus bond used by the defendant in perpetrating the offense charged. In testifying about that instrument and others of its class, he said among other things: “It is an instrument gotten up in Chicago expressly for the use of confidence men in working their games.” The witness seems to speak from his own knowledge of the matter and not from mere hearsay or rumor, and his testimony was, therefore, clearly competent. And if he...