State v. Pickett

• Decision Date: 19 May 1903
• Citation: 174 Mo. 663,74 S.W. 844
• Parties: STATE v. PICKETT.
• Court: Missouri Supreme Court

74 S.W. 844

174 Mo. 663.

STATE v. PICKETT.

Supreme Court of Missouri, Division No. 2.

May 19, 1903.

FALSE PRETENSES—INFORMATION—EVIDENCE —SUFFICIENCY.

1. Rev. St. 1899, § 1927, provides that "every person who, with intent to cheat or defraud another, shall designedly, by color of any false pretense, obtain * * * from any person any money, * * * shall on conviction thereof be punished," etc. Held, that an information charging that defendant did "willfully, unlawfully, and feloniously, with intent to cheat and defraud," etc., obtain money, etc., but failing to use the word "designedly," or other word equivalent to or broad enough to include it, was insufficient.

2. Rev. St. 1899, § 2213, provides that "every person who, with intent to cheat and defraud, shall obtain or attempt to obtain from any other person any money, property, or valuable thing whatever by means or by use of any trick or deception or false and fraudulent representation," etc., "shall be deemed guilty of a felony," etc. Held, that an information failing not only to aver in the charging part that defendant "by means of or by the use of" any trick or device or false pretense obtained the money, but also wholly failing to describe the trick or false pretense, was insufficient.

3. Defendant was prosecuted for obtaining money by falsely representing that he had mislaid and had not collected a certain draft drawn in his favor by a third person, who thereupon paid him a certain sum in cash. The third person testified: "He [defendant] went * * * for a log hauler. When he got back, he told me he didn't get it. * * * He needed a little money, and I * * * gave him all I had. He says, `The draft is down at the house somewhere;' that he would get it in time." Held, that as the statement, if false, was made voluntarily after defendant received the money, the evidence did not warrant a conviction under section 2213.

Appeal from Circuit Court, Pemiscot County; Henry C. Riley, Judge.

Thomas W. Pickett was convicted of obtaining money by false pretenses, and appeals. Reversed.

H. C. O'Bryan, for appellant. Edward C. Crow, Atty. Gen., and C. D. Corum, for the State.

GANTT, P. J.

The defendant was prosecuted by information filed by the prosecuting attorney of Pemiscot county at the February adjourned term, 1901, of the circuit court of that county. The information contained three counts, and the defendant was acquitted by the jury on the second and third counts, and convicted on the first. As the sufficiency of this first count constitutes the principal contention on this appeal, we reproduce it here.

"In the Circuit Court of Pemiscot County, Missouri. To February Adjourned Term, 1901. State of Missouri, County of Pemiscot —ss.: The State of Missouri vs T. W. Pickett. L. L. Collins, prosecuting attorney within and for the county of Pemiscot and state of Missouri, upon his official oath informs the court that T. W. Pickett, late of the county of Pemiscot and state aforesaid, on the 25th day of June, 1901, at the county of Pemiscot and state aforesaid, did then and there willfully, unlawfully, and feloniously, with the intent to cheat and defraud one J. R. King, obtain from the said J. R. King then and there being seven dollars and sixty cents, lawful money of the United States, the property of the said J. R. King, by then and there falsely, fraudulently, and feloniously representing and pretending to the said J. R. King that he, the said T. W. Pickett, had mislaid and placed, and had not presented for payment, and had not collected a certain draft drawn by the said J. R. King on Messrs. Cunningham Bros. in favor of him, the said T. W. Pickett, when in truth and in fact he, the said T. W. Pickett, had prior thereto, to wit, on the 24th day of June, 1901, had presented and had collected said draft, which said draft was in words and figures and of the tenor as follows, to wit: `$27.05. June 19th, 1901. Messrs. Cunningham Bros. Pay to the order of T. W. Pickett twenty-seven and 05/100 dollars, value received, and charge the same to the account of to hauling. J. R. King.' And the said J. R. King then and there believing the said false and fraudulent representations, statements, and pretenses so made as aforesaid to be true, and relying upon the same, paid the said T. W. Pickett seven dollars and sixty cents, lawful money of the United States, which said sum of money was given by the said J. R. King and received by him, the said T. W. Pickett, as a payment on the debt for which said draft was drawn. All of said statements and representations aforesaid made by the said T. W. Pickett he, the said T. W. Pickett, then and there well knew to be false, fraudulent, and untrue, then and there made by him, the said T. W. Pickett, with the felonious intent the said J. R. King then and there and thereby to injure, cheat, and defraud; and so L. L. Collins, prosecuting attorney aforesaid, doth say that the said T. W. Pickett, by the means of the false and fraudulent representations, statements, and pretenses as aforesaid, did, on the 25th day of June, 1901, at the county and state aforesaid, unlawfully, knowingly, and feloniously receive and obtain the said sum of money, to wit, seven dollars and sixty cents, the property of him, the...