State v. Reynolds

• Decision Date: 12 October 1891
• Citation: 17 S.W. 322,106 Mo. 146
• Parties: STATE v. REYNOLDS.
• Court: Missouri Supreme Court

17 S.W. 322

106 Mo. 146

STATE v. REYNOLDS.

Supreme Court of Missouri, Division No. 2.

October 12, 1891.

FALSE PRETENSES — INDICTMENT — VARIANCE — EVIDENCE.

1. As the constitutionality of the form of indictment under Rev. St. Mo. 1879, § 1561, making it a felony to obtain money, etc., by means of bogus checks, false pretenses, etc., is only upheld on the ground that the name of the person defrauded is required to be set forth therein, a variance between an indictment in the words of the statute and proof as to the person defrauded is fatal, and is not cured by section 1820, which provides that a variance between the indictment and proof as to the name of any person therein set forth is not ground of acquittal unless the court before trial find it material or prejudicial.

2. On the trial of an indictment in the words of the statute for an attempt to defraud one W. W. S., the state introduced in evidence an order purporting to be drawn by Mrs. M. J. S. for the payment of $10 to defendant, but not addressed to any one, accompanied by evidence that such order was presented to the clerks of a firm of which S. was a partner and general business manager, with the representation that M. J. S. was the wife of S. Held a fatal variance.

Appeal from circuit court, Greene county; W. D. HUBBARD, Judge.

Indictment of E. S. Reynolds for a felonious attempt to obtain money by false pretenses. Verdict of guilty. Defendant appealed. Reversed.

F. M. Wolff, O. H. Travers, and Hill & Danford, for appellant. John M. Wood, Atty. Gen., for the State.

MACFARLANE, J.

Defendant was tried and convicted under the following indictment: "The grand jurors of the state of Missouri, impaneled, sworn, and charged to inquire within and for the body of Greene county, upon their oath present that one E. S. Johnson, alias E. S. Reynolds, late of the county and state aforesaid, on or about the 10th day of February, 1888, at the county of Greene and state of Missouri, with intent to cheat and defraud, did then and there unlawfully and feloniously attempt to obtain from William W. Smith ten dollars, of the value of ten dollars his money and property, by means and by use of a cheat and a fraud, and a trick and a deception, and a false and fraudulent representation and statement, contrary to the forms of the statutes in such cases made and provided, and against the peace and dignity of the state." The prosecution was for offenses enumerated under section 1561, Rev. St. 1879. On the trial, the prosecution, to sustain the charge in the indictment, introduced the following order: "Springfield, Mo., Feby. 10, 1888. Please pay E. S. Johnson ten dollars, and I will see that it is paid. I am, respectfully, Mrs. M. J. SMITH. Per SARAH." This order was presented by defendant to the clerks of the firm of J. Rodecker & Co., in which William W. Smith was a partner and business manager, and payment requested. Def...