State v. Terry

• Citation: 19 S.W. 206,109 Mo. 601
• Parties: The State v. Terry, Appellant
• Decision Date: 28 March 1892
• Court: United States State Supreme Court of Missouri

19 S.W. 206

109 Mo. 601

The State v. Terry, Appellant

Supreme Court of Missouri

March 28, 1892

[Copyrighted Material Omitted]

Appeal from St. Louis Criminal Court. -- Hon. J. L. Thomas, Judge.

Reversed and remanded.

L. A Steber and A. A. Paxson for appellant.

(1) The form given in section 3826, Revised Statutes, 1889, under which this indictment is framed, must be declared unconstitutional. State v. Clay, 100 Mo. 571. The indictment does not follow the statutory form. (2) The indictment erroneously charges a number of separate and distinct offenses in one count, to-wit, "to cheat and defraud." First. By means and by use of false and fraudulent representation and statement. Second. By means and by use of a trick, a fraud, a deception, a confidence game. It does not individuate the offense. State v. Flint, 62 Mo. 393; State v. Hayward, 83 Mo. 299; State v. Clay, 100 Mo. 571. (3) The statute (sec. 3826) specifies three articles of value, money, property, valuable thing whatever. The indictment charges the attempt to obtain money. The proof, if it tends to show anything, shows that no money could have been obtained; only a draft, or warrant, or check, either of which would be "a valuable thing." This makes a fatal variance. State v. Flint, 62 Mo. 393; State v. McChesney, 90 Mo. 120; State v. Horn, 93 Mo. 191; State v. Crooker, 95 Mo. 389, 394; State v. Clay, 100 Mo. 571. (4) The money (if any) to be obtained was to be obtained in Maryland. The courts of Missouri can have no jurisdiction in this case. The crime (if any) was committed in Maryland. State v. Schaeffer, 89 Mo. 271; State v. Lichliter, 95 Mo. 402; 28 Am. L. Reg. (N. S.) 22, et seq., article on locality in Criminal Jurisdiction; Sims v. State, 28 Tex.App. 447; Commonwealth v. Gillespie, 7 Serg. & Rawle, 469, 477-8; In re Carr, 28 Kan. 1; Com. v. Harvey, 8 Am. Jur. 69; Cooley on Constitutional Limitations [6 Ed.] p. 149; 1 Crim. Law Mag., pp. 695-698 (article by Francis Wharton).

John M. Wood, Attorney General, for the State.

(1) The constitutionality of section 3826, Revised Statutes of 1889, and the sufficiency of the form of indictment therein set out, have been frequently maintained by this court. State v. Fancher, 71 Mo. 460; State v. Connelly, 73 Mo. 235; State v. Norton, 76 Mo. 180; State v. Williams, 77 Mo. 310; State v. Dennis, 80 Mo. 589; State v. Sarony, 95 Mo. 349. (2) There is no merit in the point that the indictment alleges that the defendant attempted to obtain money, while the proof shows that had the offense been consummated he would have received a check. In charging an attempt, the pleader is necessarily governed by the obvious, apparent intent of the offender, and here surely his intent was to get the money, no matter in what form. (3) The result intended by the defendant was the obtaining of the $ 5,000, and the means employed by him were certainly adapted to that end. While the filing of the application for membership might be regarded as a mere preparation, the bogus initiation and what happened subsequently thereto are overt acts, and constitute an attempt. 1 Bishop on Criminal Law [7 Ed.] secs. 749, 750. (4) One may be punished for an attempt in the place where it is made, although the act may be consummated elsewhere. 1 Wharton on Criminal Law, sec. 289; 6 Crim. Law Mag., p. 173, and cases cited in the article. (5) The fact that the supreme council did not have the money in their treasury at the time of the attempt is immaterial under the decisions of this country. 1 Bishop on Criminal Law [6 Ed.] sec. 443, and cases cited.

Sherwood, C. J. Brace and Gantt, JJ., concur in all that is said; Macfarlane, J., in reversing and remanding and will file a separate opinion; Black and Thomas, JJ., dissent; and Barclay, J., is absent.

OPINION

IN BANC.

Sherwood C. J.

The defendant was jointly indicted with several other persons under the provisions of section 3826, Revised Statutes, 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 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.

This section is just like section 1561, Revised Statutes, 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:

"State of Missouri,] St. Louis Criminal Court, May Term, 1889.

City of St. Louis.] St. Louis Criminal Court, May Term, 1889.

"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 Whitaker, 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 sixteenth 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 $ 5,000, lawful money of the United States, of the value of $ 5,000, 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, number 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 Whitaker has been the medical examiner of the council...