State v. Terry

• Decision Date: 28 March 1892
• Citation: 19 S.W. 206,109 Mo. 601
• Parties: STATE v. TERRY.
• Court: Missouri Supreme Court

19 S.W. 206

109 Mo. 601

STATE v. TERRY.

Supreme Court of Missouri.

March 28, 1892.

CONSTITUTIONAL LAW — FALSE PRETENSES — ATTEMPT TO COMMIT CRIME — VENUE.

1. Rev. St. 1889, § 3826, provides that in every indictment under that section for obtaining, or attempting to obtain, money or property by means of any trick, false pretense, etc., "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 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. Held, that such statute violates Const. art. 2, § 22, which declares that "in criminal prosecutions the accused shall have the right * * * to demand the nature and cause of the accusation," in that it does not require a particular description of the money or property obtained, etc., or the means used to obtain it. Per SHERWOOD, C. J., and BRACE and GANTT, JJ.

2. An attempt to commit a crime is cognizable in the place where made. Per SHERWOOD, C. J., and BRACE and GANTT, JJ.

3. An attempt to obtain, by fraud, a check on which money could be obtained, may be shown under an indictment which charges an attempt to obtain money. Per SHERWOOD, C. J., and BRACE and GANTT, JJ.

MACFARLANE, J., concurs in the result. BLACK and THOMAS, JJ., dissent.

In banc. Appeal from St. Louis criminal court; JOHN L. THOMAS, Special Judge.

Indictment of Robert Terry for attempting to obtain money by fraud. Defendant was convicted, and appeals. Reversed.

The other facts fully appear in the following statement by SHERWOOD, C. J.:

The defendant was jointly indicted, with several other persons, under the provision of section 3826, Rev. St. 1889, which section is 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 or 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, be punished by imprisonment in the penitentiary for a term not exceeding seven years. 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 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. This section is just like section 1561, Rev. St. 1879, with the exception that the duration of the punishment in the original section is fixed at not less than two years, while the amended section at not exceeding seven years. The indictment in question is the following: "St. Louis criminal court, May term, 1889. State of Missouri, city of St. Louis — ss.: The grand jurors of the state of Missouri, within and for the body of the city of St. Louis, now here in court, duly impaneled, sworn, and charged, upon their oath present that Robert Terry, Joseph Whittaker, Adolph Weber, August Koescher, David Goldberg, and Annie Goldberg, alias Annie Hertz, late of the city of St. Louis aforesaid, and state aforesaid, on the 16th day of March, in the year of our Lord one thousand eight hundred and eighty-eight, at the city of St. Louis aforesaid, did unlawfully and feloniously, with intent to cheat and defraud, attempt to obtain from the Supreme Council of the United States Benevolent Fraternity of Baltimore City, a corporation duly organized and existing under and by virtue of the laws of the state of Maryland, the sum of five thousand dollars lawful money of the United States, of the value of five thousand dollars, the property and money of the said corporation, the Supreme Council of the United States Benevolent Fraternity of Baltimore City, by means and by use of a false and fraudulent representation and statement, and by means and by use of a trick, a fraud, a deception, and confidence game; contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state. ASHLEY C. CLOVER, Circuit Attorney." A motion to quash this indictment, as well as one in arrest based on the insufficiency of the indictment, was denied.

The following is the substance of the testimony elicited at the trial:

The evidence in behalf of the state developed the following facts:

The Supreme Council of the United States Benevolent Fraternity of Baltimore is organized under the laws of the state of Maryland for the following purposes: To unite fraternally white male persons of certain ages, to establish a fund for the relief of sick and distressed members, and the establishment of a benefit fund from which, under certain circumstances, on the death of a member, a sum of money was to be paid his family, or to such person as he might direct. The principal office must always be located in the city of Baltimore, and the order is authorized to carry on its operations in each of the United States by the creation of subordinate councils. The association has a grip, pass-words, regalia, secret initiation, etc., and a solemn obligation is imposed upon its members. The third object of the order; the payment of death benefits, is provided for by the establishment of five grades of membership, each paying different amounts upon death; and it is optional with the member as to which grade he shall join, it being merely a matter of expense. The money for the payment of these benefits is collected by the subordinate councils throughout the country from their members, and transmitted to the supreme treasurer at Baltimore, where it is deposited. No money is kept by the local lodges for such purpose. Upon the death of a member, the officers of his council forward the proofs of death to the supreme secretary, and thereupon he draws his warrant upon the supreme treasurer for the amount of the benefit, and forwards the warrant to the secretary of the subordinate council, who delivers it to the beneficiary, taking therefor a receipt, which is sent to the supreme secretary. The only thing done by the beneficiary is the giving of this receipt. The proofs of death and necessary papers are prepared and forwarded by the officers of the local council. The warrant drawn by the grand secretary is negotiable in form, and can be collected either in Baltimore or at any local bank. The candidate for membership must be of the proper age, be recommended by a member, file a written application for membership, pass a satisfactory medical examination, pay an initiation fee, and be initiated into a subordinate council. In March, 1882, by virtue of the authority of the supreme council at Baltimore, George Washington Council No. 16 was organized in the city of St. Louis, as a subordinate council of the United States Benevolent Fraternity. Robert Terry, the defendant in this case, was chosen president or chief officer of this council in January, 1887, and Dr. Joseph Whittaker has been the medical examiner of the council since its organization. Prior to the year 1887 there was living in the city of Dallas, Tex., a German by the name of Charles Ziefle. He was a widower without children, and his nearest relative was an only sister, a Mrs. Dora Schmidt, residing in the city of St. Louis. In appearance he was of medium height, slender build, with a small sandy mustache, light hair, and quite bald on the front part of his head. By occupation he was a barber. In the early part of 1887 Ziefle was induced to come to St. Louis by Robert Terry, the defendant, for the purpose of collecting part of a death benefit due him from a lodge of his deceased brother, Lorenz Ziefle. Upon his arrival in St. Louis he went to Terry's house, where he remained for quite a while on terms of intimacy with Terry. After leaving there he lived at various places for a while, among them his sister's, and finally, in the fall of 1887, he became a boarder in the house of Fred. Bothman. Here he lived, following his trade, until the beginning of the year 1888, when he was attacked by consumption, and so rapid were its ravages that by February, 1888, he could hardly leave his room or bed. On the 25th day of February, 1888, at a meeting of George Washington Council No. 16, a written application for a fifth-grade membership, purporting to be signed by Charles Ziefle, was filed. The application stated that he resided at No. 1123 North Thirteenth street, St. Louis, Mo.; that he was a barber by trade; and he directed, should he become a member, that at his death all benefits to which he might be entitled should be paid to his sister, Annie Hertz. The residence given was the home of David Goldberg, one of the defendants, and the Annie Hertz named as beneficiary is the sister of Goldberg, and also a co-defendant. The applicant was recommended by the defendant Terry, the president of the council, and by Thomas Laird, its secretary. Mr. Laird, however, was not acquainted with Ziefle, and joined in the recommendation as a matter of form. Accompanying this application was a physician's certificate signed by Dr. Joseph Whittaker, the medical examiner, and also a defendant. Dr. Whittaker stated therein that the applicant had signed the application in his presence, and that he had made a...