
    Pleasant Bowler v. The State of Mississippi.
    1. Indictment : felon? : offence how charged. — In an indictment for a felony, it is necessary to charge that the offence was committed “ feloniously.”
    
      2. Same : offences at common law and by statute. — The statute, B,ev. Code, 630, art. 357, which provides, “that offences at common law, indictable and punishable by statute, may be indicted, and described or charged, according to the common law or statute ; and on conviction shall be punished as prescribed by statute,” does not apply where the grade of the common law offence has been increased by statute from a misdemeanor to a felony, the misdemeanor being merged in the felony.
    3. Evidence : onus probandi when fact peculiarly within knowledge of one of the parties. — When the subject-matter of a. negative averment lies peculiarly within the knowledge of the other party, the averment is taken as true unless disproved by that party. 35 Miss. B. 210.
    4. Same : obtaining goods by ealse pretences : onus probandi.— Under an indictment for obtaining goods under false pretences, it devolves upon the State to prove the falsity of the pretences, unless the fact lies peculiarly within the knowledge of the accused, and he has peculiar facility in making the proof of it.
    5. Same: case in judgment. — B. was indicted for obtaining money by falsely representing himself as a minister of the Baptist Church, in good standing. The court, at the instance of the State, charged the jury, “that if the acccused made the false representations, as stated, and thereby obtained the money, they will find him guilty, unless the accused has shown the truth of these representations. Held — That the charge was erroneous; the burden of proving the falsity of the pretences was upon the State.
    6. Same : reasonable doubt. — That which amounts to mere possibility only, or to conjecture or supposition, is not what is meant by a reasonable wjioubt. 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. 13 S. & M. 210.
    7. Obtaining goods by ealse pretences : what necessary to sustain. —To sustain an indictment for obtaining money by false pretences, it must be shown, not only that the pretences were false, but also that they were made with the design of obtaining the money, and that the money was paid in consequence of the false pretences. ■
    Error to the Circuit Court of Lowndes county. Hon. W. H. Eoote, judge.
    Pleasant Bowler was indicted at the February term, 1867, of the Circuit Ooiu't of Lowndes county, for obtaining money under false pretences.
    The indictment charges that on the 30th day of October, 1866, Pleasant Bowler, contriying and intending fraudulently and deceitfully to cheat and defraud one James Lull, clerk of the Columbus Colored Baptist Church, of his goods, chattels and money, falsely and fraudulently did, knowingly and désignedly, pretend to the said James Lull, that he was a regularly ordained minister of the Baptist Church, in good and regular standing; whereas he, the said Bowler, was not a regularly ordained minister, in good and regular standing; and that the said Bowler, by means and color of said false pretences, did falsely and fraudulently obtain from said Lull the sum of $125, the property of said Lull.
    
      Defendant in the court below, through his counsel, moved to quash the indictment, because the offence is not charged to have been committed feloniously. The motion was overruled, and defendant excepted.
    The'evidence adduced for the State is as follows :
    Noah Goff — Knew defendant; he came to Columbus in spring of 1866, and preached. Left, stating that he was going to Europe on a mission for the benefit of the Colored Church. Returned to Columbus in the fall, remained ten days and preached for witness’s church. The deacons of the church (Colored Baptist Church) asked him if he would accept the pastorate of then church. He replied, that he would if they would pay him $500 per annum, and his board and clothes, and $100 of the amount to be paid in advance; that the church could consider of his proposition and advise him at Aberdeen, where he contemplated going, of their decision. That he was advised by letter of the acceptance of the proposition, and requested to come down and take charge immediately. He came, took charge, and received from James Lull $125. Defendant continued in charge of his pastoral duties some three months, when, owing to difficulties in the church, he was discontinued. The cause of the difficulty was, that some of the members believed defendant to be a bad man, an impostor and no minister. That he promised when he took charge to show his credentials, and when requested to comply he refused, only offering other papers entirely unsatisfactory. If the church had not believed defendant to have been a minister, they would not have employed him. The church first approached defendant to accept the pastorate. The mere representation that defendant was a minister was not sufficient to induce the church to pay him the money; it was given for his services, the same being the consideration.
    That witness asked defendant to show him his credentials; he never showed them but stated that he had'them in his pocket. That he professed to have lost a carpet bag in Chicago containing some valuable papers, but after this loss he told witness he had his credentials in his pocket.
    
      Some complaint having been made about the church, it was - closed on a night that defendant had an appointment to preach. Defendant became offended, and of his own accord went off, and carried some of the members with him. Witness afterwards invited defendant to join them on a sacramental occasion, and he refused.
    Rochester Gregory testified same in substance.
    HarraU Blewett testified that defendant was a bad man, he cursed and demeaned himself in an unchristian manner; had seen him under the influence of liquor.
    W. H. O’Neal testified that he was the magistrate before whom the preliminary examination wras had. That defendant made his voluntary statment, in which he stated, that as he was passing through Chicago he lost his carpet bag, and in it were his credentials as a minister of the gospel.
    Roland Patterson for defendant, testified that defendant discontinued his pastoral charge in consequence of a difficulty in which he was not censurable. The church split, the largest portion going with defendant. That he is now the pastor of the dissenters, preaches regularly, and is believed to be a good man, with the love of God in his heart. That witness had not been deceived in defendant, that he talked like one educated in the ministry, and was familiar with the forms and ceremonies of the church. .
    A number of other witnesses testified the same in substance as Roland Patterson.
    Defendant offered as evidence his license to solemnize the rights of marriage by the Probate Court of Logan county, Ohio, in which he is described as a minister of the Baptist Church. The State objected, the testimony excluded, and defendant excepted.
    ■ Defendant offered to read as evidence a paragraph from one of the Richmond papers, in reference to “ Rev. Pleasant Bowler, pastor of the 1st Colored Baptist Church.” The State objected, the evidence was excluded, and defendant excepted.
    The jury returned a verdict of guilty. A motion for a new trial was made and overruled. The defendant was sentenced to three months’ imprisonment in the county jail, and to pay a fine of $100. A writ of error was sued out, returnable to this court.
    
      W. W. Humphries and W. ¡S. Barry, for plaintiff in error, contended:
    1. That the offence with which accused was charged, was a felony by statute Rev. Code, 591, art. 105, and the indictment should charge that it was committed feloniously. Wharton’s Am. Cr. L., § 399; Archibold’s Crim. PI. 300.
    2. The indictment does not charge the common law offence of a cheat. It is a misdemeanor, and defined to be “ the fraudulent obtaining the property of another by any deceitful and illegal practice or token, which affects or may affect the public, such as is public in its nature and calculated to defraud numbers ; to deceive people in general.” 1 Leading Cr. C. 11; 1 East, R. C. 811; Russell on Crimes, 282; Wharton’s Am. Crim. L. 2056 ; 3 Greenleaf’s Év. § 84.
    3. When the statute makes that a felony which before was only a misdemeanor, the misdemeanor is merged and cannot thereafter be prosecuted. 1 Russell, 50; 3 Barn. & Aid. 161; 10 Pick. 39 ; 12 Mass. 455 ; 1 Pick. 45.
    4. That the “onus prohcmdi” as to the falsity of the pretences was on the State. “ When the subject-matter of a negative averment lies peculiarly within the knowledge of the other party, the averment is taken as true, unless disproved by that party.” He must not only have the knowledge, but the means to testify and exhibit' it to the court must be peculiarly within his reach. 1 Greenleaf’s Ev. pages 111-112; 35 Miss. 210; 5 Humph. 9.
    5. The verdict was not not warranted by the proof.
    
      G. E. Hoolcer, attorney-general, for defendant in error.
   Ellett, J.,

delivered the opinion of the court.

This is an indictment against the plaintiff in error for obtaining money by false pretences, under article 100, Rev. Code, 591. The substance of the charge is, that the accused falsely pretended to be a regularly ordained minister of the Colored Baptist 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 offence is a felony, and was not charged to have been committed “feloniously.” The offence 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, .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 offence 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 offence charged' in this indictment is therefore a felony, the -amount being over that sum. It is settled that the word feloniorrsly ” is indispensable in every indictment for p felony, 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 Bev. 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, &e., 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 offence 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 detect cured by art. Y, Rev. Code, 5Y3, 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 gospel, and in good standing in said church; and the court refused to instruct them that the burthen 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. M5. Exceptions to this rule are sometimes admitted, in reference to the proof of negative averments. In regard to thesej 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 acts, 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. The accused in this case may have been ordained in a distant State. He may have exercised the functions of the ministry in Yirginia, or Ohio, or both. It does not appear that he had resided in Missisippi 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 all 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 iyom 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 erroneous.

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 conscientious 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-fox*mable or agreeable to that faculty of the mind by which it distinguishes truth froxxx falsehood, and good from evil, and which enables the possessor to deduce inferences from facts, or from propositions. It implies a want of that fulness and completeness'of proof which would enable the xnind satisfactorily to draw the conclusion of guilt from the facts in evidence. “ A sentiment clear and stx-ong, which forbids the mind to go forward tó a conviction ” of the accused, might seem to favor the idea that there should be a reasonable eertaiixty of his innocence, in order to justify'his acquittal. We think thg 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 even 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. He 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 hot 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.

The judgment will be reversed, the indictment quashed, and the cause remanded, for further proceedings, by a new indictment, or otherwise, in the cornt below.  