State v. Peacock

• Decision Date: 31 January 1861
• Citation: 31 Mo. 413
• Parties: THE STATE, Appellant, v. PEACOCK, Respondent.
• Court: Missouri Supreme Court

31 Mo. 413

THE STATE, Appellant,

v.PEACOCK, Respondent.

Supreme Court of Missouri.

January Term, 1861.

1. In an indictment under the statute (R. C. 1855, p. 582, § 51,) the false pretences by means of which the property was obtained must be falsified by distinct and specific averments, as in an assignment of perjury.

Appeal from Cedar Circuit Court.

Knott, (attorney general,) for the State.

Johnson & Ballou, for respondent.

I. The first count in the indictment is insufficient. The acts made indictable in the statute do not make criminal the acts charged in the first count of the indictment as alleged. The thing obtained is a deed or title to forty acres of land, which is neither money, personal property, a right in action, or other valuable thing or effects, within the meaning of that section; nor is the deed a valuable thing itself: the land it conveys may be, but not the deed. It is not averred in the indictment to whom the deed was made; it is not charged that the deed was executed by Scott or by whom, to show it was of any value. Nor is a false representation in the description of land or its location such a false pretence as is made criminal under the section alluded to; nor are the representations alleged to have been made by the defendant, particularly and specifically alleged to be false; nor is it alleged, nor does it appear that although the representations were untrue, that Scott or any other person was defrauded, or likely to be, to any amount, except as to the value of the land per acre.

II. The second count is also insufficient in this, that it is not averred that for and in consideration of a trade for the land of the defendant in Iowa, Scott assigned defendant a certain bond which is set out. The supposed bond is not a bond, as it is not said in it to be valid. It is not alleged to be of any value, nor is it averred to have been executed by any person, or that anybody was bound thereby. The indictment merely recites the supposed bond, which, for aught that appears in the indictment, was wholly fictitious, and certainly it will not be contended that a person should be punished unless some person is injured or defrauded. The second count is otherwise insufficient and informal. The judgment ought not to be reversed.

EWING, Judge, delivered the opinion of the court.

This was an indictment under section fifty-one, (R. C. p. 582,) for obtaining by false pretences the signature of one George Scott, to an instrument of writing. There are two counts; the first, after setting out the several pretences, charges that by such false pretences, a deed of forty acres of land, lying in the county of Cedar, was obtained, and that by such false pretences the said Scott was induced to trade and barter land to the said defendant, being in said county, for lands in Iowa. There is no description of the instrument, other than by designating it in general terms as a deed, neither its date, description, or numbers of the land conveyed, names of persons executing it, (except by inference,) nor any of its contents, except as before stated, are set out or...