The State v. Cameron

• Decision Date: 09 November 1893
• Parties: The State v. Cameron, Appellant
• Court: Missouri Supreme Court

23 S.W. 767

117 Mo. 641

The State v. Cameron, Appellant

Supreme Court of Missouri, Second Division

November 9, 1893

Appeal from Montgomery Circuit Court. -- Hon. E. M. Hughes, Judge.

Judgment reversed.

W. S Pope and Creech & Martin for appellant.

(1) The motions to quash and in arrest should have been sustained. It is difficult to determine whether it was intended to charge defendant under section 3654 or 3780 or 3826 of the Revised Statutes of 1889. This case falls within State v Terry, 109 Mo. 601; see, also, State v. Porter, 75 Mo. 171. (2) The judgment should be reversed because of the many errors of the trial court in admitting and excluding evidence. (3) The demurrer to the evidence ought to have been sustained as to defendant, as well as to Meeks, because the offense attempted to have been charged was not proved. State v. Hunt, 91 Mo. 490. (4) The trial court erred in instructing the jury in this, that the first instruction given is a comment on the testimony. It was calling the attention of the jury to certain facts in evidence and certain parts of the evidence. Revised Statutes, 1889, sec 4220; State v. Handley, 46 Mo. 414; State v. Smith, 53 Mo. 267. (5) The instruction given at the instance of the prosecuting attorney is open to the same objection, and then enlarges on the charge in the indictment by the use of the words, "a cheat, or a fraud, or a trick, or a deception," or "confidence game," none of which words are in the indictment. These are words of the statute under which he was tried, not the words of the indictment. (6) The instructions asked by defendant are correct propositions of law, based on a good indictment under section 3826. The instructions asked by the state, and given after the argument commenced, is clearly erroneous, for the reason that defendant was on trial on a charge based on section 3826, and not 3780 for conspiracy.

R. F. Walker, Attorney General, for the state.

(1) The indictment informs the defendant of the nature and cause of the accusation against him, and clearly charges the crime in language and form often approved by this court, and is not subject to the criticism suggested by appellant's motion to quash, which was properly overruled. Revised Statutes 1889, sec. 3826; State v. Fancher, 71 Mo. 460; State v. Porter, 75 Mo. 171; State v. Crooker, 95 Mo. 389; State v. Clay, 100 Mo. 571; State v. Morgan, 20 S.W. 456; State v. Jackson, 20 S.W. 624; State v. Horn, 93 Mo. 190; State v. McChesney, 90 Mo. 120; State v. Bayne, 88 Mo. 604; State v. Connelly, 73 Mo. 235; State v. Dennis, 80 Mo. 590; State v. Williams, 77 Mo. 311. (2) The evidence that defendant had defrauded, cheated and swindled other persons in the same locality and by use of the same means, false and fraudulent representations, was clearly admissible. State v. Bayne, 88 Mo. 604; State v. Meyers, 82 Mo. 558; State v. Sarony, 95 Mo. 349; State v. Beaucleigh, 92 Mo. 490. (3) The other objections to testimony are trivial. They were general, with no specific reasons assigned, and in many instances no exceptions to the action of the court in overruling them were saved. (4) The instructions correctly declare the law applicable to the case, under the indictment and the testimony. (5) Defendant, in his motion for a new trial, further alleges as error, "that the trial was proceeded with in defendant's absence; that defendant was not permitted to meet his accusers face to face;" improper remarks of the prosecuting attorney. These complaints, if true, should have been made at the time. It is too late to first suggest them in his motion for new trial. Again, the allegation in the motion for new trial is no evidence of the fact that they actually occurred. (6) The unsupported statement in defendant's motion for new trial, that Andrew Meyers, one of the jurors, did not know that the verdict returned by them was guilty, but understood it was not guilty, can avail defendant nothing. A juror cannot be heard to impeach his verdict. The juror, however, makes no such an attempt.

OPINION

Gantt, P. J.

The count in the indictment on which defendant was convicted is as follows:

"The grand jurors for the state of Missouri, duly impaneled charged and sworn to inquire within and for the body of the county of Lincoln, and state of Missouri, upon their oath do charge and present that, on or about the twenty-fourth day of April, A. D. 1891, at the county of Lincoln, and state of Missouri, A. Q. Cameron, C. A. Meeks and F. J. Web, being then and there in an unlawful conspiracy, combination, confederation and agreement among themselves, with the intent to cheat and defraud Hansford Richards of his money and property, did then and there in the prosecution and furtherance of said unlawful conspiracy, confederation, combination and agreement, feloniously and designedly, with the intent to cheat and defraud said Hansford Richards, falsely pretend to the said Hansford Richards that they, the said A. Q. Cameron, C. A. Meeks and F. J. Web, were in the neighborhood of the said Hansford Richards representing a certain lightning rod company, to these grand jurors unknown, and that for the purpose of advertising in his, the said Hansford Richards, neighborhood, they, the said A. Q. Cameron, C. A. Meeks and F. J. Web, could and would give the said Hansford Richards a great bargain, if he, the said Hansford Richards, would allow them, the said A. Q. Cameron, C. A. Meeks and F. J. Web, to put lightning rods on his, the said Hansford Richards,' dwelling house, saying that they would give the said Hansford Richards one hundred feet of rod, free and without charge, as a special inducement for him, the said Hansford Richards, to allow them, the said A. Q. Cameron, C. A. Meeks and F. J. Web, the privilege of rodding his, the said Hansford Richards,' dwelling house; that the said A. Q. Cameron, C. A. Meeks and F. J. Web then and there cautioned the said Hansford Richards to say nothing to his neighbors about the special and exceptional bargain, they, the said A. Q. Cameron, C. A. Meeks and F. J. Web, had given him; that they could only afford to do this with him, the said Hansford Richards, on account of its being such a good and successful means of advertisement to the people of the said Hansford Richards' neighborhood, and for the further consideration the said Hansford Richards was to allow them, the said A. Q. Cameron, C. A. Meeks and F. J. Web, to bring the said Hansford Richards' neighbors and such other persons as they pleased to his house, so that his neighbors and other persons could examine the lightning rods and their work, and satisfy themselves as to the kind of material and class of work the said A. Q. Cameron, C. A. Meeks and F. J. Web did, telling the said Hansford Richards that they were only going to charge him for the actual cost of the labor required in putting the lightning rod on his said dwelling house, and for the few extra feet of rod that it might take over and above the said one hundred feet of lightning rod they had given him without cost as aforesaid, and that the entire expense, including all charges for lightning rods and labor should not cost the said Hansford Richards more than five dollars in any event. And that the said Hansford Richards, believing the said false pretenses and fraudulent representations so made as aforesaid to be true, and being deceived thereby, was induced by...