State v. Phelan

• Citation: 159 Mo. 122,60 S.W. 71
• Parties: STATE v. PHELAN.
• Decision Date: 18 December 1900
• Court: Missouri Supreme Court

60 S.W. 71

159 Mo. 122

STATE v. PHELAN.

Supreme Court of Missouri, Division No. 2.

December 18, 1900.

OBTAINING PROPERTY BY FALSE PRETENSES —INDICTMENT—SUFFICIENCY.

An indictment for obtaining property by false pretenses, which alleges that the prosecuting witness, by such false pretenses, "was induced to then and there sell and deliver" the property to defendant, is bad for failure to allege that such witness did sell and deliver the property, since the allegations are not equivalent

to each other, and nothing can be supplied by intendment.

Appeal from circuit court, Vernon county; H. C. Timmonds, Judge.

Walter Phelan was convicted of obtaining personal property by false pretenses, and appeals. Reversed.

A. J. King and A. J. Smith, for appellant. The Attorney General and Sam B. Jeffries, for the State.

GANTT, P. J.

The defendant was indicted, tried, and convicted in the circuit court of Vernon county at the October term, 1899, and from that conviction appeals to this court.

The indictment is as follows: "State of Missouri, County of Vernon—ss.: In the Criminal Court, April term, 1899. Indictment. The grand jurors for the state of Missouri, summoned from the body of the county of Vernon, now here in court, duly impaneled, sworn, and charged to inquire within and for the body of the county of Vernon and state of Missouri, upon their oath do present and charge that one Walter Phelan, late of the county and state aforesaid, on or about the 22d day of September, A. D. 1899, at the county of Vernon and state of Missouri, then and there contriving, designing, and intending to cheat and defraud Thomas Cain and Amanda Cain of their personal property, valuable things, and effects, did apply to and request the said Thomas Cain and Amanda Cain to sell or trade him, the said Walter Phelan, certain personal property, valuable things, and effects, and to induce the said Thomas Cain and Amanda Cain to sell or trade to him, the said Walter Phelan, said personal property, valuable things and effects, and to effect his said design and intent to cheat and defraud the said Thomas Cain and Amanda Cain, he, the said Walter Phelan, did then and there unlawfully, designedly, feloniously, and falsely represent, pretend, and state to the said Thomas Cain and Amanda Cain, that he, the said Walter Phelan, was then and there the owner of one-half interest in a livery stable and stock of horses in the town of Dexter, in Stoddard county, Missouri; that, if the said Thomas Cain and Amanda Cain would sell or trade to him, the said Walter Phelan, among other personal property, valuable things, and effects then owned by and in the possession of the said Thomas Cain and Amanda Cain, one team of horses, to wit, one bay mare seven years old, of the value of fifty dollars, and one bay mare about ten years old, of the value of fifty dollars, of the aggregate value of one hundred dollars, that he, the said Walter Phelan, in exchange for said horses would give to them, the said Thomas Cain and Amanda Cain, horse for horse, out of his, Walter Phelan's, livery stable in the town of Dexter, Stoddard county, Missouri; that his, Walter Phelan's, horses in said livery stable in Stoddard county, Missouri, were as good, if not better, and of more value than said team of horses of Thomas Cain and Amanda Cain; that as soon as Thomas Cain and Amanda Cain should arrive at the town of Dexter, Stoddard county, Missouri, that he, the said Walter Phelan, would deliver to them, the said Thomas Cain and Amanda Cain, out of the livery stock aforesaid, a team of horses as good or better than those of Thomas and Amanda Cain, and that he, the said Walter Phelan, would make them, the said Thomas Cain and Amanda Cain, perfectly satisfied; and the said Thomas Cain and Amanda Cain, believing said false pretenses and false representations so made as aforesaid by the said Walter Phelan to be true, and relying on the same, and being deceived thereby, were induced by reason thereof to then and there sell and deliver to the said Walter Phelan the following personal property, to wit, one bay mare seven years old, of the value of fifty dollars, and one bay mare about ten years old, of the value of fifty dollars, of the aggregate value of one hundred dollars, of the personal property of the said Thomas Cain and Amanda Cain; and the said Walter Phelan, by means of the false pretenses and representations so made as aforesaid, unlawfully, feloniously, and designedly did obtain and receive of and from the said Thomas Cain and Amanda Cain the personal property above mentioned, with the intent them, the said Thomas Cain and Amanda Cain, then and there to cheat and defraud; whereas, in truth and in fact the said Walter Phelan was not then and there the owner of a one-half interest in a livery stable and stock of horses in the town of Dexter, Stoddard county, Missouri, and had no interest whatever in any livery stable and stock of horses in the town of Dexter, Stoddard county, Missouri, and did not give to them, the said Thomas Cain and Amanda Cain, horse for horse, for the horses by them delivered to the said Walter Phelan, as so falsely represented by him, the said Walter Phelan, to the said Thomas Cain and Amanda Cain, as aforesaid; all of which pretenses and representations so made as aforesaid he, the said Walter Phelan, then and there well knew to be false, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state of Missouri."

The evidence tended to prove that defendant, Phelan, lived at Dexter, Mo., and in 1898 had taken his wife to an infirmary at Nevada, Mo., and was sojourning there during her treatment. Thomas Cain and his wife, Amanda Cain, were the owners of a tract of land, containing 80 acres, in Vernon county. On December 3, 1897, the Cains made a trade with William Woods, whereby they agreed in writing to make him a warranty deed to 40 acres of their land for $400, and Woods gave them his obligation to pay $400. On September 14, 1898, Woods assigned this contract to defendant, Phelan. Cain and his wife heard of the assignment, and came to Nevada to see defendant about the matter. They met, and, after discussing the matter, they made a trade with defendant whereby they exchanged their said farm to defendant for a farm owned by him in Stoddard county, Mo. The deeds were executed and delivered in the office of Messrs. McGinniss in Nevada, Mo. Several days later they entered into a contract about the exchange and sale of the personal property of the Cains. The memorandum is in these words: "McGinniss & Co. Office in Opera House. Nevada, Mo., Sept. 22, 1899. This is to certify that whereas, Thomas Cain and wife have placed in my possession the farm and household goods and stock numerated in the above list, that I hereby agree to furnish them with duplicates of said listed goods at secondhand prices, as nearly as possible, or, being unable to do this, I agree to pay them the value at...