State v. Porter

• Decision Date: 31 October 1881
• Citation: 75 Mo. 171
• Parties: THE STATE v. PORTER, Appellant.
• Court: Missouri Supreme Court

75 Mo. 171

THE STATE

v.PORTER, Appellant.

Supreme Court of Missouri.

October Term, 1881.

Appeal from Randolph Circuit Court.--HON. G. H. BURCKHARTT, Judge.

REVERSED.

O. T. Rouse for appellant.

The indictment is defective in this, that it does not allege and negative the pretense, and does not allege that Williams believed the pretense to be true and by reason thereof signed the note. R. S. 1879, § 1335; State v. Evers, 49 Mo. 542; State v. Bonnell, 46 Mo. 395; State v. Saunders, 63 Mo. 482. The offense aimed at by section 1561 is the obtaining of money or ““property” by false pretenses. State v. Fancher, 71 Mo. 460. A note is not the property of the maker. This note was not the property of Williams, but when delivered belonged to the defendant. Before that it was not property. Hence, defendant could not be indicted for obtaining it. It was error to require defendant to testify on cross-examination as to matter not referred to in his testimony in chief. R. S. 1879, § 1918. The note is not negotiable. It had not the words “for value received.” R. S. 1879, § 547.

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

The indictment follows the language and is in the form given by the statute, section 1561, and is sufficient. A promissory note is a valuable thing and comes within the meaning of the statutory prohibition. State v. Fancher, 71 Mo. 460; State v. Connelly, 73 Mo. 235; State v. Thatcher, 35 N. J. L. 445; 2 Bish. Crim. Law, (6 Ed.) § 157. It is immaterial that the note was non-negotiable. 35 N. J. L. 445.

HENRY, J.

Appellant and one Turner were jointly indicted at a special term of the Randolph circuit court held in June, 1881, and appellant was convicted and sentenced to imprisonment in the penitentiary for a term of three years, on the following indictment, omitting the caption: “T. G. Porter and N. R. Turner, late of the county of Randolph aforesaid, on the 25th day of May, 1881, at Moniteau township, in Randolph county, and State aforesaid, within the jurisdiction of said circuit court, with intent to cheat and defraud, did unlawfully and feloniously obtain from William C. Williams a certain valuable thing, to-wit: a promissory note for the sum of $750, and of the value of $750, executed by the said William C. Williams and indorsed in blank across the back by the said William C. Williams, by means and by use of certain false and fraudulent representations and statements and false pretenses, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State.”

The evidence for the State tended to prove that defendant and Turner went to the prosecutor's house and represented themselves as agents of the Western Medical works of Indianapolis, Indiana, authorized to appoint agents to vend its medicines, and induced the prosecutor to accept an agency, and sign what the latter supposed to be a contract by which he was to receive a certain amount of medicines to sell on commission, etc., which, he afterward discovered, was a promissory note executed by, payable to, and indorsed by himself, and delivered to the defendant, for the sum of $750; that the defendant procured his signature to the note, by pretending to read what he represented to be a copy of the same, but which was a different paper, imposing no such obligation on the prosecutor.

Section 1335 of the Revised Statutes, is as follows: “Every person, who, with intent to cheat or defraud another, shall designedly, by color of any false token or writing, or by any other false pretense, obtain the signature of any person to any written instrument, or obtain from any person any money, personal property, right in action, or other valuable thing or effects whatsoever, and every person who shall, with the intent to cheat and defraud another, agree or contract with such other person, or his agent, clerk or servant, for the purchase of any goods, wares, merchandise or other property whatsoever, to be paid for upon delivery, and shall, in pursuance of such intent to cheat and defraud, after obtaining possession of any such property, sell, transfer, secrete or dispose of the same, before paying or satisfying the owner or his agent, clerk or servant therefor, shall, upon conviction thereof, be punished in the same manner, and to the same extent as for feloniously stealing the money, property or thing so obtained.”

Section 1561, reads as follows: “Every person who, with intent to cheat and defraud, shall obtain or attempt to obtain, from any other person or persons, any money, property or valuable thing whatever, by means or by use of any trick or deception, or false and fraudulent representation or statement or pretense, or by any other means or instrument, or device commonly called the “confidence game,' or by means or by use of any false or bogus check, or by any other written or printed or engraved instrument or spurious coin or metal, shall be deemed guilty of a felony, and upon conviction, etc.,” fixing the punishment at not less than two years in the penitentiary; and provides that in every indictment under this section, “it shall be deemed and held a sufficient description of the offense to charge that the accused did on ______, unlawfully and feloniously obtain or attempt to obtain (as the case may be) from A. B. (here insert the name of the person defrauded) his or her money or property, by means and by use of a cheat or fraud or trick or deception or false and fraudulent representation or statement or false pretense, or confidence game, or false and bogus check, or instrument, or coin, or metal, as the case may be, contrary to the form of the statutes,” etc.

Under this section the indictment was found, and defendant's counsel insist that he should have been indicted, if at all, under section 1335. The evidence tended to prove that defendant had, by a trick, a false pretense, and a fraudulent representation, procured the signature and delivery by the prosecutor to the defendant, of a note, executed by, payable to, and indorsed by the prosecutor for the sum of $750.

1. FALSE PRETENSES: obtaining a note from the maker.

We are inclined to the opinion that the facts would have made out a case against him under section 1335, but by a singular oversight, under a misapprehension of the law, the general assembly in that section provided a punishment for this offense, wholly inadequate to its enormity. One guilty of a violation of that section is punishable only in the same manner and to the same extent, as for feloniously stealing the money, property or thing so obtained. The punishment, therefore, would depend upon the amount of money, or the value of the property or thing so obtained, because the value would determine whether the punishment should be that provided for grand larceny or that inflicted for petit larceny.

At common law mere choses in action, as bonds, bills and notes, were not goods whereof larceny could be committed, as being of no intrinsic value, and not importing any property in the possession of the person from whom taken. Russ. on Crimes, 69; People v. Loomis, 4 Denio 382; ...