State v. Vorback

• Decision Date: 31 October 1877
• Citation: 66 Mo. 168
• Parties: THE STATE, Appellant, v. VORBACK.
• Court: Missouri Supreme Court

66 Mo. 168

THE STATE, Appellant,

v.VORBACK.

Supreme Court of Missouri.

October Term, 1877.

Appeal from Chariton Circuit Court.--HON G. D. BURGESS, Judge.

J. L. Smith, Attorney-General, for appellant.

A false pretense is defined to be a representation of some fact or circumstance calculated to mislead, which is not true. 2 Bish. Crim Law. (5th Ed.,) Sec. 415.

So there need be only one false pretense, and although several be set out in the indictment, yet if any of them are proved, being such as amount in law to a false pretense, the indictment is sustained. 2 Bish. Crim. Law, sec. 418.

The pretense that the agent of the partnership had examined into the solvency of the defendant, and had satisfied himself of the same, such not being the case, was certainly calculated to mislead, and was of a sufficiently controlling character to cause the owners to part with the goods. As to the representation of owning a farm and property, see 2 Bish. Crim. Law, Sec. 444.

In Conger's case, 1 Wheeler's Crim. Cases, 450, representing that the defendant was a person of wealth and credit, was held a sufficient false pretense.

In People v. Haynes, 11 Wend. 557, Mr. Justice Nelson says, the statute extends to every case where a party has obtained money or goods by falsely representing himself to be in a situation in which he is not, or by falsely representing any occurrence that has not happened to which persons of ordinary caution might give credit.

So see People v. Kendall, 25 Wend. 399, where a minor representing himself to be a joint owner with his father of a number of cows and other stock on a neighboring farm, was held within the statute.

In State v. Newell, 1 Mo. 248, the defendant represented that he was the owner of four valuable slaves, when he was not, and our Supreme Court held this to be a false pretense and within the statute. 2 Bish. Crim. Law, Sec. 437; State v. Pryor, 30 Ind. 350.

Pollard & Chapman, and S. C. Major, Jr., with Devors & Winters for respondent.

I. The indictment shows that a portion of the false pretenses were concerning some future thing the defendant was to do, viz: open a general store. Now, although there were other representations set up of things then in being, viz: his property and his bank account; yet, as the bill of exceptions fails to show the evidence, this court cannot determine whether Gaines, the person from whom the defendant obtained the goods, was actuated in delivering them by the one or the other representation, and the defendant is entitled to the benefit of the doubt, and as it is not a felony to obtain goods on a promise to do something in the future, the indictment is bad. State v. Evers, 49 Mo. 542; Dillingham v. State, 5 Ohio St. 282; Commonwealth v. Drew, 19 Pick. 185.

II. The indictment no where charges that Gaines believed the representations made by defendant, and it is therefore bad. State v. Green, 7 Wis. 676; Commonwealth v. Strain, 10 Met. 521; State v. Bonnell, 57 Mo. 395; Wharton's Am. Crim. Law, § 2128.

NORTON, J.

Defendant was indicted at the November term, 1873, of the Chariton county circuit court, for obtaining goods under false pretenses. He was tried at the November term, 1874, and convicted, and, on his motion, a new trial was awarded. He was again placed upon his trial at the November term, 1875, which resulted in his conviction, with punishment assessed to two years imprisonment in the penitentiary. A motion to arrest the judgment, on the ground that the indictment was insufficient, was sustained by the court, and from this judgment the State has appealed to this court.

The indictment alleges in proper form that defendant made to Henry L. Gaines and James Louchein, who were partners in business, the following false representations “that he, the said Christian Vorback, was about to open a general store in the town of Dawn, in Livingston county, Missouri; that he, the said Christian Vorback, had, a short time previous thereto, met with one Samuel W. Spencer, who was the traveling salesman for the said Henry L. Gaines and James Louchein, and that Samuel had solicited his custom for said co-partnership; that he, the said Samuel Spencer, had examined into and had satisfied himself as to his, the said Christian Vorback's, solvency and ability to pay his debts, and that said Spencer had directed him, the said Vorback, to come down to Brunswick before purchasing elsewhere, and if the liquors, goods and prices therefor were not satisfactory to him, that he, the said Spencer, or the said firm of Henry L. Gaines, would pay his expenses both ways; also, that he, the said Vorback, owned a good farm and several...