State v. Tatum

50 So. 490, 96 Miss. 430

• Court: Mississippi Supreme Court
• Decided: March 15, 1910
• Status: Published

Opinion

Smith, J.,

delivered the opinion of the court.

Appellee was indicted in the court below for obtaining money under false pretenses; This indictment was demurred to-, and from a judgment sustaining the .demurrer, and quashing the indictment, this appeal is taken by the state.

The allegations of tbe indictment necessary to be here considered are as follows: First, “did then and there falsely and feloniously pretend, by means of letters and otherwise, to the said Aycock Frank Alvis Company that the said M. J. Tatum had in his possession,” etc.; and, second, “did * * * obtain from the said Aycock Frank Alvis Company six hundred dollars in money,” etc.; and, “intending to' cheat and defraud Aycock Frank Alvis Company, a partnership composed of Aycock Frank Alvis, doing business in -New Orleans, Louisiana,” etc. The three grounds of demurrer necessary to be herein considered are: Because said indictment fails to allege or charge the value of the property alleged to have been obtained by the defendant; because the indictment fails to set forth the contents of the letters alleged to have been used for the purpose of procuring the money alleged in said indictment; because the indictment fails to give or set forth the proper names of the persons composing the firm of Aycock Frank Alvis Cbm-pany. .

The first two of these grounds are wholly untenable. “When the false pretense is in writing, or consists wholly or in part in the use of a written instrument, the writing need not be set out in Ticec verba. It is sufficient, as in the case of a verbal pretense, to set out the purport of it, unless some question turns 'on the form or construction of the instrument, or some legal description of it is given in the indictment, the accuracy of which it may be material for the court to determine.” 19 Cyc. 424, 425, and authorities there cited. The allegation that appellant obtained from the said Aycock Frank Alvis Company $600 in money is a sufficient allegation of the value thereof. Oliver v. State, 37 Ala. 134; People v. Millan, 106 Cal. 320, 39 Pac. 605 ; 8 En. Pl. & Pr. 875.

The indictment, however, failed to allege the names of the individual persons composing the partnership. The name of the party defrauded must be set out, as a means of identifying the offense charged; and this allegation is as essential in false pretenses as it is in larceny. McClain on Crim. Law, vol. 1, § 707. Where the persons defrauded compose a partnership, the indictment must allege both the Christian name and surname of the individuals composing the same, or a proper excuse be given for not' so doing. 2 Bishop, Criminal Pr. § 718.

The demurrer, therefore, was properly sustained.

Affirmed.