State v. Norton

I.

Sherwood, C. J.

The defendant was indicted under section 1561, Revised Statutes 1879. The indictment is good, and is in form heretofore approved by this court. State v. Fancher, 71 Mo. 460 ; State v. Connelly, 73 Mo. 235 .

II.

It is very clear that the court when instructing the jury should have submitted the point as to whether the acts charged in the indictment, and testified to at the trial were done “with intent to cheat and defraud.” The obtaining of money or property with such intent is the very *182 gist of the offense. State v. Fancher, supra. Without such intent there can be no violation of the statute. If there could be, then with equal propriety could it be claimed, that taking the goods of another without larcenous intent would constitute the crime of theft. If any support were required for so obvious a position, tbe authorities cited by defendant’s counsel could abundantly furnish it.

III.

There was no impropriety in permitting Chief of Police Speers to testify what he knew touching the bogus bond used by the defendant in perpetrating the offense charged. In testifying about that instrument and others of its class, he said among other things: “ It is an instrument gotten up in Chicago expressly for the use of confidence men in working their games.”. The witness seems to speak from his own knowledge of the matter and not from mereNiearsay or rumor, and his testimony was, therefore, clearly competent. And if he did not speak from his own knowledge, it was a very easy thing to have ascertained this by cross-examination.

And his long experience on the police force at Kansas City, certainly would enable him, as his testimony showed, to determine whether the bond offered in evidence was valuable or was merely a “ bogus bond,” such as are usually employed by a certain class of criminals called “confidence men,” to effect their nefarious purposes. The testimony of Speers in this regard, arising as it did from his experience ■ in regard to such instruments, was certainly as competent as if he had been testifying in a proper case with respect to a tool alleged to be a burglarious one. Nothing is more common or competent than the introduction of such testimony. Greenwell v. Crow, 73 Mo. 638 .

For the error committed in failing to instruct the jury in the particular heretofore mentioned, tbe judgment will be reversed and the cause remanded.

All concur.

*183 In the State v. O’Brien, decided at the same time as the foregoing case, the judgment was reversed for the same reason, Sherwood, C. J.; delivering the opinion of the court.