State v. Vandenburg

• Decision Date: 18 December 1900
• Citation: 60 S.W. 79,159 Mo. 230
• Parties: STATE v. VANDENBURG.
• Court: Missouri Supreme Court

60 S.W. 79

159 Mo. 230

STATE v. VANDENBURG.

Supreme Court of Missouri, Division No. 2.

December 18, 1900.

FALSE PRETENSES—INDICTMENT—VALIDITY—ALLEGATIONS —SUFFICIENCY—VALUE OF PROPERTY—AVERMENT—FALSE REPRESENTATIONS.

1. The fact that an indictment was drawn under an unconstitutional section of a statute did not render it invalid, where it constituted a good indictment under another section of the statute.

2. Rev. St. 1889, § 3564, provides that every person who, with intent to cheat or defraud another, designedly, by color of any false writing, or by any other false pretense, shall obtain from any person any money, personal property, right in action, or other valuable thing or effects whatsoever, shall be punished in the same manner as for feloniously stealing the money, property, or thing so obtained. Held, that an indictment alleging that defendant, with intent to unlawfully cheat and defraud S., did unlawfully, knowingly, feloniously, and fraudulently represent to S. that he was then and there an authorized insurance agent, and, as such pretended agent or representative of an insurance company, obtained from S. two notes, of the value of $36, and the defendant was not then and there the agent or representative of any insurance company, constituted a good indictment, under the statute.

3. Where an indictment charged that defendant induced plaintiff to deliver to him a certain valuable thing, to wit, a promissory note for $36, of the value of $36, the contention that the indictment failed to show that the note was of value cannot be sustained.

4. Where an indictment charged defendant with unlawfully, knowingly, and feloniously obtaining a note from S. by falsely representing himself to be the agent of an insurance company, the fact that the indictment also charged that defendant promised to secure an insurance policy for S., the promise to be executed in the future, did not render the indictment nugatory, as not charging a crime, since the material representation which led S. to part

with his property was that defendant was in fact an agent of the company at the time the representations were made, and the accompanying promise did not take away the criminal character of such representations.

Appeal from circuit court, Lincoln county.

John Vandenburg was indicted for obtaining a note by means of false and fraudulent pretenses, and from an order sustaining a demurrer to the indictment, and from a judgment in favor of defendant, the state appeals. Reversed.

The Attorney General and Sam B. Jeffries, for the State. Norton, Avery & Young, for respondent.

BURGESS, J.

At the October term, 1899, of the circuit court of Lincoln county, defendant was indicted for obtaining a promissory note for $36.30 from one John Schloeman, dated at Troy, Mo., on the 2d day of May, 1899, made payable to the order of T. J. Hamlett six months after date, and signed by said Schloeman, by means of false and fraudulent pretenses. At the same term of the court at which the indictment was found defendant demurred thereto for the following grounds of objection, to wit: First, because the indictment does not follow the form prescribed by said statute; second, because said statute is unconstitutional and void; third, because the indictment fails to show that any property or thing obtained by defendant as charged in said indictment had any value; fourth, because it is shown by the indictment that the property or thing obtained or charged to have been obtained by defendant was obtained by reason of a contract or promise to be executed or carried out in the future by defendant. The demurrer was sustained, and judgment rendered thereon in favor of defendant. The state appeals.

The defendant is not represented in this court, but, judging from the objections taken to the indictment by the demurrer, the contention seems to be that the indictment was drawn under section 3826, Rev. St. 1889; that that section is unconstitutional, and the indictment must, of course, be held invalid. But, however this may be, it makes no difference under what particular section of the statute the indictment may have been drawn, nor the infirmities of such section or of the indictment thereunder, provided it be good under some other section of the statute which is valid. Section 3564, Rev. St. 1889, 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 * * * from any person any money, personal property, right in action or other valuable thing or effects whatsoever, * * * 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." Now, the indictment charges that defendant, "with the intent then and there unlawfully and feloniously to cheat and defraud one John Schloeman, then and there unlawfully, knowingly, and feloniously did falsely and fraudulently represent, state, and pretend to the said John S. Schloeman that he, the said John Vandenburg, was then and there the authorized agent and representative of the New England Mutual Life Insurance Company of Boston, Massachusetts, a corporation duly organized, incorporated, and existing under the laws of the state of Massachusetts, and that he, the said John Vandenburg, had full right and authority from said corporation then and there to transact the business of life insurance for and on behalf of said corporation, and to sell, and to contract for the sale of, life insurance policies of said corporation, and to collect and receive the premiums thereon for and on behalf of said corporation, in such manner as he, the said John Vandenburg, saw fit, and that he, the said John Vandenburg, was then sent to the said John Schloeman by the said...