State v. Scott

• Decision Date: 31 October 1871
• Parties: THE STATE OF MISSOURI, Respondent, v. JAMES H. SCOTT, Appellant.
• Court: Missouri Supreme Court

48 Mo. 422

THE STATE OF MISSOURI, Respondent,

v.JAMES H. SCOTT, Appellant.

Supreme Court of Missouri.

October Term, 1871.

Appeal from St. Louis Criminal Court.

John Hallum, for appellant.

I. It is not necessary, in prosecutions for forgery, to charge a design to defraud any person or corporation; but this is of the essence of the offence where the whole gravamen of the crime complained of is directed, as in this case, against one individual.

II. The indictment does not charge that the check was not paid. (1 Chit. Cr. Law, 168-9; see generally 2 Burr. 1127; The People v. Gates, 15 Wend. 318.)

III. The indictment does not charge that any crime was actually perpetrated. It simply charges an intent, the object of which was never executed. In forgery, the act of affixing the signature is in itself the consummation of the crime; not so in procuring the signature by means of false pretenses. The signature may be worthless, it may create no liability; it may be, too, an instrument from which no harm can result. (The People v. Galloway, 17 Wend. 540; The People v. Williams, 4 Hill, 9; The People v. Wright, 9 Wend. 193; The People v. Gates, 13 Wend. 311; Dord et al. v. The People, 9 Barb. 671; Commonwealth v. Strain, 10 Metc. 521, cited and approved by this court in State v. Bonnell, 46 Mo. 395.)

IV. The indictment does not charge that the prosecutor believed and acted on the alleged false pretenses when he indorsed the check. He must act on the belief that they are true, otherwise he cannot claim that he was injured or influenced by them. (The People v. Stetson, 4 Barb. 151; Commonwealth v. Davidson, 1 Cush. 33; Bronson & Crocker v. Wiman, 4 Seld. 182.) The indictment must show that the alleged indorser was damnified. (People v. Thomas, 3 Hill, 169.)

V. The indorsement of Conn, on any paper whatever executed or drawn by Scott, does not appear in any part of this record from beginning to end.

Counsel here went into a discussion of the testimony in the case.

Charles P. Johnson, for respondent.

I. In a prosecution under section 47, article III, chapter 42, Wagn. Stat., it is not necessary to charge a design or intent to defraud any particular person or corporation, or that any particular person or corporation was defrauded. The pleader is governed by chapter 42, article II, section 41, Wagn. Stat. (See Whart. Cr. Law, 6th ed., § 297.)

II. The indictment contains a “brief narration of the offense charged and a certain description of the crime.” It is in accord with 1 Chit. Cr. Law, 167-9; 2 Burr. 1127; Whart. Prec., tit. False Pretences. It sets forth in detail the false representations and pretenses made to Conn to procure his signature to the check in question, and then falsifies each and every one of them by distinct and specific averments as in an assignment of perjury, and in accordance with the decision of this court in State v. Peacock, 31 Mo. 413; see also People v. Herrick, 13 Wend. 87; 2 Russ. Crimes, 303.WAGNER, Judge, delivered the opinion of the court.

The defendant appealed from the judgment of conviction obtained against him in the Criminal Court, and the first objection assigned is the insufficiency of the indictment. The indictment sets out, in substance, that the defendant “unlawfully, knowingly, feloniously and designedly did falsely pretend to John N. Conn that a certain paper writing produced by the defendant to the said Conn, and purporting to be a check drawn by the defendant upon the National Trust Company of the city of New York for the payment, to the order of said defendant, of the sum of $150 in current funds, was then and there a good, genuine and available order for the payment of the sum of $150, and that the defendant kept an account with said National Trust Company, and that he had money in the hands of the said company for the payment of the said check; that he had full power, right and authority to draw checks upon said National Trust Company of the city of New York; by means of which false pretenses the defendant did then and there, unlawfully, knowingly, feloniously and designedly, obtain from the said Conn his indorsement in writing on the back of said check, with intent then and there to cheat and defraud.” The indictment then, by distinct and specific averments, sets out the falsity of the pretenses and negatives the truth of the representations made by the defendant.

The indictment was under the statute (Wagn. Stat. 461, § 47), which provides that “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, * * * 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.” Here every allegation that was necessary was made. The false pretenses were clearly and precisely stated, and it...