The State v. Stowe

• Decision Date: 21 January 1896
• Citation: 33 S.W. 799,132 Mo. 199
• Parties: The State v. Stowe, Appellant
• Court: Missouri Supreme Court

33 S.W. 799

132 Mo. 199

The State v. Stowe, Appellant

Supreme Court of Missouri, Second Division

January 21, 1896

Appeal from Greene Criminal Court. -- Hon. J. J. Gideon, Judge.

Reversed and remanded.

Geo. S Rathbun, W. A. Rathbun, and A. P. Tatlow for appellant.

(1) The court erred in admitting the mortgage in evidence; also in admitting the mortgage given by the defendant after trading for the horses. The state offered it to show the intention of defendant. If so, the court erred in not instructing the jury to that effect as it only tended to mislead and prejudice them. (2) The verdict is clearly against the weight of the evidence, and is the result of passion and prejudice. The instructions were disregarded. Garrett v. Greenwell, 92 Mo. 121; Spohn v. Railroad, 87 Mo. 74; Hipsley v. Railroad, 88 Mo. 348. (3) The indictment is fatally defective. It does not apprise defendant of the nature and cause of the accusation. Const. of Mo., art. 2 sec. 22. Defendant was entitled to know what mortgage was relied upon by the prosecution. The names of the mortgagor and mortgagee were not given and no date nor amount was given, nor the place of record. State v. Terry, 109 Mo. 601; Keller v. State, 51 Ind. 111; Com. v Grady, 13 Bush (Ky.), 285; Redmond v. State, 35 Ohio St. 81; State v. Lambeth, 80 N.C. 393; Barber v. People, 17 Hun, 366; United States v. Harmon, 34 F. 872; State v. Clay, 100 Mo. 571; State v. Rector, 126 Mo. 328; State v. McGinnis, 126 Mo. 564; State v. Crocker, 95 Mo. 389. (4) There is no evidence showing where the mortgagors lived at the time the mortgage was executed by them. It should have been shown that they lived in Greene county before the mortgage was entitled to be recorded there. R. S. 1889, sec. 5176; Hughes v. Menefee, 29 Mo.App. 192; Wilson v. Milligan, 75 Mo. 41; Bryson v. Penix, 18 Mo. 13; Bevans v. Bolton, 31 Mo. 137; Dillard v. State, 19 S.W. 895. (5) It is only a conclusion of law to say a valid mortgage; therefore all facts necessary to make same valid should be stated. State v. Clay, 100 Mo. 571; Dillard v. State, 19 S.W. 891; 109 Mo. 601; 83 Mo. 299, and cases above cited. (6) There was no excuse for saying in indictment names of mortgagor and mortgagee unknown to grand jury, as the amount, date, and recording were known, and it was their duty to inform themselves and at least describe same so as to inform defendant. United States v. Harmon, 34 F. 872; State v. Crocker, 95 Mo. 389. The evidence shows the mortgage relied upon was recorded at Springfield, Greene county, Missouri, the home of, and place at which the trade was made by, prosecuting witness. He could have easily searched the record. The amount of the mortgage should also be given in indictment, for if merely nominal there was no crime. Com. v. Grady, 26 Am. Rep. 192; Com. v. Haughey, 3 Metc. (Ky.) 223; State v. Trisler, 31 N.E. 881.

R. F. Walker, attorney general, for the state.

The indictment in this case is based upon section 3564, Revised Statutes, 1889, follows the language of the statute, alleges the false pretense upon which the defendant obtained the property, negatives the truth of such pretense, and avers that the owner relied upon the truth of the pretense made by the defendant when the property was parted with, particularly describes it, and states its value; this is all that is required. State v. Lichlighter, 95 Mo. 402; State v. Flanders, 118 Mo. 233; State v. Alexander, 119 Mo. 448. Unless it appears that the testimony admitted over the objections of the defendant was prejudicial, although it may have been immaterial and irrelevant, it will not justify a reversal. The admission of evidence in regard to certain mortgages could in no way have prejudiced the defendant, and he will, therefore, not be heard to complain.

OPINION

Sherwood, J.

The defendant appeals from a judgment against him, having been found guilty of making false pretenses in exchanging horses with one Waugh, and his punishment assessed at two years in the penitentiary.

Omitting preliminary matters, the indictment is the following:

"That Aretas Stowe, late of the county and state aforesaid, on the day of September, 1892, at the county of Greene, and state of Missouri, did then and there, unlawfully, feloniously, knowingly, and designedly, with the intent to cheat and defraud one William N. Waugh, did then and there knowingly, feloniously and falsely, pretend, represent, and state to him, the said William N. Waugh, that he, the said Aretas Stowe, was then and there real, legal, and absolute owner of two certain horses (a more particular description these grand jurors are unable to give) then in his (Stowe's) possession, and that said team of horses was free from all liens or incumbrances whatsoever; and the said William N. Waugh believing the said false pretenses, representations, and statements, so made as aforesaid, by him, the said Aretas Stowe, to him, the said William N. Waugh, to be true, and relying thereon was induced by reason thereof, to trade, exchange, and deliver to the said Aretas Stowe, for the two horses above mentioned as aforesaid, two horses described as follows, the property of him the said William N. Waugh, that is to say, one bay horse, twelve or thirteen years old, and one brown horse about thirteen years old, said last described horses being of the value of $ 100, and of the personal property of him, the said William N. Waugh, and the said Aretas Stowe, by means of the felonious and fraudulent representations, statements, and false pretenses so made by him, the said Aretas Stowe, to him, the said William N. Waugh, as aforesaid, did then and there feloniously, designedly, and fraudulently obtain and receive of and from him, the said William N. Waugh, the said bay horse, twelve or thirteen years old, and said brown horse, thirteen years old, the same being of the value of $ 100, of the personal property of him, the said William N. Waugh, with the felonious intent, on the part of him, the said Aretas Stowe, then and there to cheat and defraud him, the said William N. Waugh, of the said bay horse, twelve or thirteen years old, and of the brown horse, thirteen years old, whereas in truth and in fact, the said Aretas Stowe was not then and there the owner of the two horses first above mentioned, and the same were not in truth and in fact free from all liens and incumbrances whatsoever, and whereas, in truth and in fact, he the said Aretas Stowe, was not then and there the real, legal, and absolute owner of said two horses first above described, but in truth and in fact there was a lien and incumbrance on said two horses first above mentioned, that is to say, there was on the day of September, 1892, a legal, valid, and subsisting mortgage, unpaid and unsatisfied, on the two horses first above described, the name of the mortgagee and mortgagor being unknown to these grand jurors, as he, the said Aretas Stowe, then and there well knew at the time, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state.

"J. H. Duncan,

"Prosecuting Attorney."

The sufficiency of this indictment being questioned by a motion in arrest, will now require examination, and this would be our duty even were no such motion filed, as the indictment is matter of record, and therefore open to examination for the first time in this court.

It must be quite clear that this indictment is lacking in several essentials which go to make up a valid charge of crime. A person accused is entitled by the terms of the bill of rights, article 2, section 22, "to demand the nature and cause of the accusation" against him, and unless the indictment gives this information, it does not answer the end the constitution requires it should accomplish.

The charge in the indictment under consideration is vexatiously vague and indefinite in that it does not state, a, in what county the mortgage referred to was recorded, nor indeed, b, that it was recorded anywhere, nor, c, give the names of the mortgagor and mortgagee, nor, d, the date of the mortgage, nor, e, the amount it was given to secure, nor, f, a description of the horses, which secured the mortgage, although Waugh, to whom the horses were alleged to have been exchanged, was a witness whose name was indorsed on the indictment.

In Indiana, Keller was prosecuted for obtaining personal property under false pretenses in regard to certain real estate described as being "a house and lot of ground in the city of Indianapolis," and it was averred that Keller represented that a certain incumbrance for $ 500 was the only lien on the property. In negativing the truth of this allegation it was averred that the "lien and mortgage of $ 500 on the said house and lot of ground for the purchase money thereof as aforesaid, was not the only lien and incumbrance then upon said house and lot of ground, but there were various and numerous other liens thereon, older and prior to the said lien of $ 500, amounting in the aggregate to $ 2,000," etc. Speaking on the subject of the insufficiency of such an indictment, Buskirk, J., said:

"The first averment is very vague and indefinite. There is no sufficient description of the real estate alleged to have been owned and sold by the appellant. Nor is the name of the purchaser given. Criminal charges must be preferred with reasonable certainty, so that that the court and jury may know what they are to try, of what they are to acquit or convict the defendant, and so that the defendant may know what he is to answer, and that the record may show, as far as may be, of what he has been put in jeopardy. The averments should be so clear and distinct that there could be no difficulty in determining what evidence was admissible under them. *...