State v. Stowe

• Decision Date: 21 January 1896
• Citation: 33 S.W. 799,132 Mo. 199
• Parties: STATE v. STOWE.
• Court: Missouri Supreme Court

33 S.W. 799

132 Mo. 199

STATE v. STOWE.

Supreme Court of Missouri, Division No. 2.

January 21, 1896.

FALSE PRETENSES — INDICTMENT — UNCERTAINTY — DESCRIPTION OF PERSON AND PROPERTY.

1. Under Bill of Rights, art. 2, § 22, which entitles one charged with crime "to demand the nature and cause of the accusation," an indictment is bad which charges a defendant with obtaining property by falsely pretending to be the unqualified owner of certain horses exchanged therefor, when such horses were in fact incumbered by mortgage, but fails to describe the horses, or state the parties to the mortgage, or its date or amount, or the county where recorded, or whether possession was delivered to the mortgagee and retained by him, or whether the mortgage was recorded.

2. An averment in an indictment that the name of a person or a fact necessary to be alleged is unknown is permissible only from necessity, and the indictment is rendered invalid, and the defendant entitled to a discharge therefrom, when it appears on the trial that the name or the fact either was known, or could, by the exercise of ordinary diligence, have become known, to the grand jury.

Appeal from criminal court, Greene county; J. J. Gideon, Judge.

Aretas Stowe was convicted of obtaining property by false pretenses, and appeals. Reversed.

Geo. S. Rathbun, W. A. Rathbun, and A. P. Tatlow, for appellant. R. F. Walker, Atty. Gen., for the State.

SHERWOOD, J.

The defendant appeals from a judgment against him, having been found guilty of making false pretenses in exchanging horses with one Waugh, and his punishment assessed at two years in the penitentiary. Omitting preliminary matters the indictment is the following: "That Aretas Stowe, late of the county and state aforesaid, on the ____ day of September, 1892, at the county of Greene, and state of Missouri, did then and there unlawfully, feloniously, knowingly, and designedly, with the intent to cheat and defraud one William N. Waugh, did then and there knowingly, feloniously, and falsely, pretend, represent, and state to him, the said William N. Waugh, that he, the said Aretas Stowe, was then and there real, legal, and absolute owner of two certain horses (a more particular description these grand jurors are unable to give), then in his (Stowe's) possession, and that said team of horses was free from all liens or incumbrances whatsoever. And the said William N. Waugh believing the said false pretenses, representations, and statements, so made as aforesaid, by him, the said Aretas Stowe, to him, the said William N. Waugh, to be true, and relying thereon, was induced by reason thereof to trade, exchange, and deliver to the said Aretas Stowe, for the two horses above mentioned as aforesaid, two horses described as follows, the property of him the said William N. Waugh; that is to say, one bay horse, 12 or 13 years old, and one brown horse about 13 years old, said last-described horses being of the value of one hundred dollars, and of the personal property of him, the said William N. Waugh. And the said Aretas Stowe, by means of the felonious and fraudulent representations, statements, and false pretenses so made by him, the said Aretas Stowe, to him, the said William N. Waugh, as aforesaid, did then and there feloniously, designedly, and fraudulently obtain and receive of and from him, the said William N. Waugh, the said bay horse, 12 or 13 years old, and said brown horse, 13 years old, the same being of the value of one hundred dollars, of the personal property of him, the said William N. Waugh, with the felonious intent, on the part of him, the said Aretas Stowe, then and there to cheat and defraud him, the said William N. Waugh, of the said bay horse, 12 or 13 years old, and of the brown horse, 13 years old. Whereas, in truth and in fact, the said Aretas Stowe was not then and there the owner of the two horses first above mentioned, and the same were not in truth and in fact free from all liens and incumbrances whatsoever, and whereas, in truth and in fact, he, the said Aretas Stowe, was not then and there the real, legal, and absolute owner of said two horses first above described, but in truth and in fact there was a lien and incumbrance on said two horses first above mentioned; that is to say, there was on the ____ day of September, 1892, a legal, valid, and subsisting mortgage, unpaid and unsatisfied, on the two horses first above described, the names of the mortgagee and mortgagor being unknown to these grand jurors, as he, the said Aretas Stowe, then and there well knew at the time, — contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state. J. H. Duncan, Prosecuting Attorney."

The sufficiency of this indictment, being questioned by a motion in arrest, will now require examination; and this would be our duty even were no such motion filed, as the indictment is matter of record, and therefore open to examination for the first time in this court. It must be quite clear that this indictment is lacking in several essentials which go to make up a valid charge of crime. A person accused is entitled, by the terms of the bill of rights (article 2, § 22), "to demand the nature and cause of the accusation" against him, and unless the indictment gives this information, it does not answer the end the constitution requires it should accomplish. The charge in the indictment under consideration is vexatiously vague and indefinite, in that it does not state (a) in what county the mortgage referred to was recorded; nor, indeed, (b) that it was recorded anywhere; nor (c) give the names of the mortgagor and mortgagee; nor (d) the date of the mortgage; nor (e) the amount it was given to secure; nor (f) a description of the horses which secured the mortgage, although Waugh, to whom the horses were alleged to have been exchanged, was a witness whose name was indorsed on the indictment. In Indiana, Keller was prosecuted for obtaining personal property under false pretenses in regard to certain real estate described as being "a house and lot of ground in the city of Indianapolis," and it was averred that Kellar represented that a certain incumbrance for $500 was the only lien on the property. In negativing the truth of this allegation it was averred that "the lien and mortgage of $500 on the house and lot of ground, for the purchase money thereof as aforesaid, was not the only lien then upon said house and lot of ground, but there were various and numerous other liens thereon, older and prior to said lien of $500, amounting in the aggregate to $2,000," etc. Speaking on the subject of the insufficiency of such an indictment, Buskirk, J., said: "The first averment is very vague and indefinite. There is no sufficient description of the real estate alleged to have been owned and sold by the appellant, nor is the name of the purchaser given. Criminal charges must be preferred with reasonable certainty, so that the court and jury may know what they are to try, of what they are to acquit or convict the defendant, and so that the defendant may know what he is to answer, and that the record may show, as far as may be, of what he has been put in jeopardy. The averments should be so clear and distinct that there could be no...