Bowler v. State

Ellett, J.: This is an indictment against the plaintiff in error for obtaining money by false pretences under article 100, Bev. Code, 591. The substance of the charge is that the accused falsely pretended to be a regularly ordained minister of the Colored Bap- - tist Church in good standing, and thereby induced the church in Columbus to call him as their pastor, and to pay him the sum of $125. A motion was made in the court below to quash the indictment on the ground that the offense is a felony, and was not charged to have been committed “feloniously.” The offense of obtaining money or goods by false tokens or pretences, to any amount, however small, is made by the statute a felony, inasmuch as it is punishable by imprisonment in the penitentiary. Bev. Code, 630, art. 348. By the 3d section of the article, creating county courts, approved November 24, 1865; page 68, the obtaining of goods, — 1519 — money, or other property by false pretences, under the value of one hundred dollars, is made a misdemeanor, and may be prosecuted in the county court. This act so modifies the offense that ' it is now a felony only when the indictment charges the money or goods obtained to have been of the amount or value of one hundred dollars. The offense charged in this indictment is, therefore, a felony, the amount being over that sum. It is well settled that the word “ feloniously ” is indispensable in every indictment for a felony,1 and hence the motion to quash this indictment ought to have been sustained. It is suggested that the indictment may have been upheld in the court below as for a cheat at common law, by virtue of the 357th article of the Rev. Code, p. 630. But the common law -misdemeanor of obtaining goods by false pretences is made by our statute a felony where 'the amount or value of the goods, &c., exceeds $100, and is, therefore, no longer indictable as at common law, the misdemeanor being merged in the felony. And, besides, in this ease the indictment does not charge a cheat that would be indictable at common law. The article last alluded to cannot apply where the grade of the common law offense has been increased by statute from a misdemeanor to a felony, otherwise a person' might be indicted for a misdemeanor, and punished for a felony. Nor is the defect cured by Art. 7, Rev. Code, 573, for the objection was taken by motion to quash the indictment before plea pleaded. The instructions given for the state, and refused on behalf of the prisoner in the court below, are also made the subject of exceptions. The jury were instructed, in substance, that if they believed the accused made the representations charged in the indictment, to wit, that he was a regularly-ordained minister of the Baptist church, and in good standing, and thereby obtained the money, they must find him guilty, unless he had shown that he was at the time a regularly-ordained minister of the — 1520 — gospel, and in good standing in said church; and the court refused to instruct them, that the burden of -proving- these allegations was upon the state. The general rule in cases of this kind is, that the falsity of the pretences must be clearly proved. Roscoe on Ev., 445. Exceptions to this rule are sometimes admitted in reference to the proof of negative averments. In regard to these, the rule is well defined in Easterling v. The State, 35 Miss., 210; where it is said: “ The rule is, that when a fact is peculiarly within the knowledge of one of the parties, so that he can have no difficulty in showing it, the presumption of innocence or of acting according to law will not render it incumbent on the other side to prove the negative.” The cases usually cited to illustrate this principle are where licenses are required by the local law to justify certain actsj as retailing, peddling, .keeping tavern, and the like, and parties are indicted for doing the acts without the license. In such cases, the fact is peculiarly within the knowledge of the party; if he has the license, he can produce it without trouble or difficulty; and the license, if produced, is admissible in evidence, and is conclusive in his favor; and he is required to show it, or the inference will be drawn against him, that he has not obtained the necessary license. This is in derogation, to a limited extent, of the general presumption of- innocence; but it is a rule of convenience, and, restrained within proper bounds, cannot well work injury or hardship. But we do not think the present case can be embraced within its operation. No mode, is prescribed by law for authenticating the proceedings of ecclesiastical bodies. Nobody is authorized to certify copies from their records, so as to make them evidence in courts of justice. Their certificates, in the form of •credentials to ministers, would stand only on the footing of hearsay. The proceedings of such bodies can only be proved by sworn copies, or by witnesses who were present, or, perhaps, to a certain extent, by general reputation. We have no judicial knowledge of the existence of any such body as the “ Colored Baptist Church ” in Mississippi, nor can we know where or how its ministers receive their ordination. — 1521 — Tlie accused in this case may have been ordained in a distant state. He may have exercised the functions of the ministry in Virginia, or Ohio, or both. It does not appear that he had resided in Mississippi before his advent in Columbus, in the fall-of 1865. If ordained in another state, or if he had exercised his sacred office in other states, the certificate of his ordination would not be original evidence of the fact, nor could he compel the attendance or procure the depositions of witnesses. He may have peculiar knowledge of the fact, but it does not at ah. appear-that he has any peculiar facility in making the proof of it. And then, as to his good standing in the church, he is required also to prove that. We suppose that when the good standing of. a minister in his church is spoken of, the question is whether he has been brought under censure or subjected to discipline by the authorities of the ecclesiastical body to which he belongs. To establish his good standing, he must show, not only that he has not been deposed or suspended from his office, but that there are no charges, and perhaps that there are no evil 'reports abroad concerning him. , To require this of the accused, would be to throw upon him the proof of a negative of the most difficult and oppressive character. We think the instructions of the court on this point were err. roneous. The court also charged the jury that “ a reasonable doubt is not vague conjecture, nor mere hypothesis, but a sentiment clear and strong, arising in the mind of an enlightened and conscien-. tious jury, which, upon a full survey of the facts, forbids -its going forward to a conviction. It is not easy to give a definite idea of what is a reasonable doubt. It is certainly not a mere conjecture or hypothesis, not founded on a reasonable view of .the evidence. “ That which amounts to mere possibility only, or to conjecture or supposition, is not what is meant by a reasonable doubt.. The doubt which should properly induce a jury to withhold a verdict of guilty should be such a doubt as would reasonably arise from the evidence -before them.” Cicely v. The State, 13 S. & M., 210. We-do.not think it need be a “ clear and strong” doubt; the proper word is “ reasonable; ” that is, just, rational, con-, — 1522 — formable or agreeable to that faculty of the mind by which it distinguishes truth from falsehood, and good from evil, and which enables the possessor to deduce inferences from facts, or from propositions. It implies a want of that fullness and completeness of proof which would enable the mind satisfactorily to draw the conclusion of guilt from the facts in evidence. “ A sentiment clear and strong, which forbids the mind to go forward to a conviction ” of the accused, might seem to favor the idea that there should be a reasonable certainty of his innocence in order to justify his acquittal. "We think the expression used was too strong, and that the instruction was liable to the exception taken to it. Another exception is, that the court refused a new trial. We have carefully considered the evidence, and do not think it was sufficient to sustain the verdict. The false pretence must be made with the design to obtain the money. That is clear, and the jury were so charged. The evidence for the state satisfies us that the pretences relied on, whether they were true or false, were not made with any design to obtain the money, or oven to procure an employment as pastor of the church. The accused did not seek the place. The congregation, or their representatives, the deacons, as the proof shows, sought him, and invited him to become their pastor. Tie stated his terms, and left them to reflect upon the subject, and to write to him their conclusion. No doubt he had represented himself to be a minister, and if they had not believed him to be one, they would not have called ■him. Whether he was so or not, we do not undertake to decide. But so far as the proof shows, he did not take any step or use any means to induce the prosecutors to employ him as their preacher. Moreover, the evidence also shows, that the money was not paid to him in consequence of his representation that he was a minister, but as compensation for services actually rendered by him in his ministerial capacity. The representations or pretences are therefore not so closely connected with the act of obtaining the money, as if they were admitted to have been false, to justify a conviction on this indictment. — 1523 — The judgment will be reversed, the indictment quashed, and the cause remanded for further proceedings, by a new indictment or otherwise, in the court below. Footnotes [1] Wharton Am. Cr. Law, 399; State v. Murdock, 9 Mo,, 739; State v. Gilbert, 24 Mo., 365; Rex v. Gray, L. & C., 365; Mears v. Com., 2 Grant, 385; 2 Hawk., c. 25, § 55; 2 Hale, 184.