State v. Willard

• Decision Date: 28 March 1892
• Citation: 19 S.W. 189,109 Mo. 242
• Parties: The State v. Willard, Appellant
• Court: Missouri Supreme Court

19 S.W. 189

109 Mo. 242

The State v. Willard, Appellant

Supreme Court of Missouri, Second Division

March 28, 1892

Appeal from Jackson Criminal Court. -- Hon. H. P. White, Judge.

Reversed.

Hatch & Middlebrook for appellant.

(1) The indictment is bad. First. It fails to designate or describe in any way the false pretense, trick, fraud or bogus check or instrument. Second. It fails to designate who the accused intended to defraud, or against whom his fraudulent intent was directed. Third. It violates the constitution of the state of Missouri by not sufficiently informing the accused of the nature of the accusation made against him. Fourth. It is composed exclusively of "generic terms," inferences drawn from facts, but states no facts or particulars. Fifth. It is totally lacking in all essentials of a common-law indictment, both as to substance and form. (2) The instruction in the nature of a demurer to the pleading and evidence, directing the jury to acquit the defendant, should have been given. Under the testimony (eliminating that improperly admitted), the defendant should have been acquitted.

John M Wood, Attorney General, for the State.

(1) The indictment follows the form prescribed by section 3826 Revised Statutes, and is sufficient. State v Fancher, 71 Mo. 461; State v. Connelly, 73 Mo. 235. (2) The evidence in this case clearly brings the case within the provisions of the section under which the indictment was drawn. State v. Dennis, 80 Mo. 587. (3) The instructions which were given by the court in this case, on the part of the state, are sustained in State v. Bayne, 88 Mo. 604, and fully and fairly submitted all the issues presented by the evidence to the jury, and no error was committed in refusing instructions asked by defendant.

OPINION

Gantt, P. J.

At the January term, 1890, of the Jackson county criminal court, the defendant, Charles F. Willard, was indicted in the following form:

"January Term, 1890.

"The grand jurors of the state of Missouri, in and for the body of the county of Jackson, upon their oath present that C. F. Willard, whose christian name in full is unknown to these jurors, late of the county aforesaid, did, at the City of Kansas, in said county, on the third day of November, 1889, at the county of Jackson, state aforesaid, with intent to cheat and defraud, did unlawfully and feloniously obtain from Karges & Cartwright, a copartnership composed of Julius J. Karges and George S. Cartwright, their money and property, to-wit: One fur robe, of the value of $ 14, one pair of fur gloves, of the value of $ 8.50 and one beaver cape, of the value of $ 20, of the goods and property of the said Julius J. Karges and George S. Cartwright, by means and by use of a cheat and fraud and trick and deception and false and fraudulent representation and statement and false pretense and confidence game and false and bogus check and instrument, contrary to the form of the statutes and against the peace and dignity of the state.

"Henry M. Withers,

"Prosecuting Attorney."

Karges & Cartwright kept a general store at Thirteenth and Grand avenue, in Kansas City, in a portion of the city distant from the banks. Defendant and prosecuting witnesses had had previous dealings with each other. Two days before Thanksgiving, 1889, the defendant was in Karges & Cartwright's store, and while there one of the proprietors, at his request, laid aside the fur robe and the pair of fur gloves mentioned in the indictment. On Thanksgiving day the defendant was in the store and remarked it was cold, whereupon the proprietor told him he could take the gloves and robe that day; he would credit him till Saturday. He thereupon took these articles and they were charged to him. On Saturday he came in with a young lady, and looked at a fur cape, which he agreed to take, if it fit the lady. It did not fit, and was returned to the possession of the owners. All the witnesses agree that she nor defendant kept this cape, but it had been returned and was in the possession of its owners when this prosecution commenced. On Saturday, November 30, 1889, the defendant gave the firm his check for $ 42.50 on the National Bank of Commerce. Payment was refused. Thereupon the prosecution was commenced.

The court gave the following instructions for the state: "1. If you shall believe and find from the evidence that at the county of Jackson, state of Missouri, any time within three years next before the twenty-second day of January, 1890, the defendant, intending to cheat and defraud, obtained from the witness Cartwright the articles of personal property named in the indictment, or any portion of them, of any value whatever, and shall further believe that he obtained the article or articles, 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 or bogus check or instrument, you will find the defendant guilty as charged, and assess his punishment at imprisonment in the state penitentiary for a term of years not less than two and not exceeding seven.

"2. You will be careful to observe that the intent of the defendant is of the very essence of the offense charged. Consequently, although you may believe that the defendant drew a check upon a bank in which he had no account and kept no deposit, you cannot convict unless you further believe that in obtaining articles of personal property belonging to Karges & Cartwright, and named in the indictment, he, the defendant, intended to cheat and defraud. Specific proof as to the intent is not required. Whether the defendant did or did not intend to cheat and defraud is a matter for you to determine by fair inference from all the facts and circumstances proven.

"3. ...