State v. Janson , 80 Mo. 97 ( 1883 )

Philips, C.

The appellant was indicted at the February term of the Laclede circuit court, 1881, for obtaining money from one Conrad Wiessgerder. He was convicted at the same term of court, and sentenced to imprisonment in tbe penitentiary for the term of two years. From this judgment he has appealed to this court.

1. practice m the supreme court.

As neither the motion for new trial nor in arrest of judgment is preserved in the bill of exceptions, we cannot take notice of any errors, if any, arising jn progress of the trial, but the only errors reviewable in such case are those apparent on the face of the record proper. This has been so repeatedly decided by this court as to require no citation of the cases so holding.

2. an indictment,

It is claimed by appellant that the indictment is insufficient to support the judgment of conviction, because it does not affirmatively appear that the defendant knew the alleged false pretenses or representations were false. On examination of the indictment we find, after setting out the pretenses and representations and negativing their truth, the following averment: “All of which the said Andrew Janson then and there well knew.” This, we think, was a sufficient averment of the scienter, after verdict, to sustain the indictment in this particular.

3.-.

It is also alleged against the sufficiency of the indictment, that it avers that the defendant was about to ship the property, on the faith of the coming of which it is alleged he-obtained the money in question. It is claimed as this is a future event and not of the past, the law does not make the representation the basis of a prosecution for false pretenses. Conceding this to be the law, as applicable to the facts of this case, it does not invalidat this indictment. The averment in this respect is : “ That he, the said Andrew Janson, was about to ship, and had shipped to the railroad company at Lebanon, at the count v and State aforesaid, the following personal property,” etc ; from which it is manifest that the indictment contained, in addition to the averment that he was about to do the act, that “ he had shipped,” etc. This was sufficient "Whether or not the proof sustained this averment could only be brought to our attention by being properly saved in the bill of exceptions. This is not'done.

The judgment of the circuit court is, therefore, affirmed.

All concur. Norton, J., absent.