State v. Blockberger. ted under one count. [State v. Carpenter, 216 Mo. 442, and cases cited.] III. The objections made by defendant to the introduction of testimony on behalf of the State were purely technical. Great latitude was given the defendant in the introduction of testimony in his own behalf. A full review of the entire record Testimony. discloses no error in the admission or exclusion of testimony which by reasonable construction can be said to have proved prejudicial to the defendant. IV. Although the amount of money found on the defendant's person corresponding in description to that taken from the cash register was only $14.15, it having been shown that the larceny was Burglary and committed in the perpetration of a burglary, the larcenous taking constituted a felony irrespective of the value of the thing stolen. [State v. Yandle, 166 Mo. 589; State v. Moss, 216 Mo. 436.] Larceny. V. The instructions given by the court on its own motion, none being asked by either the State or the defendant, clearly and fairly presented the law applicable to the case under the evidence, and are couched in language heretofore frequently approved Instructions. by this court in like cases. In other words, these instructions complied in every respect with the mandate of the statute (sec. 5231, R. S. 1909), which requires the court in felony cases, whether so requested or not, to instruct the jury in writing upon all questions of law arising in the case necessary for their information in finding their verdict. [State v. Conway, 241 Mo. 271.] VI. The jury in their verdict found the defendant guilty of burglary in the second degree and larceny as charged in the information, and assessed his Verdict and State v. Foley. punishment at imprisonment in the penitentiary for a term of two years for the burglary and for an additional term of two years for the larceny. This is a clear and definite finding of guilty under each offense and prescribes the punishment in such manner as to indicate that the sentences thereunder were to be cumulative. There being no prejudicial error in this case, the judgment of the trial court is affirmed. Brown, P. J., and Faris, J., concur. THE STATE v. RICHARD FOLEY, Appellant. Division Two, February 19, 1913. 1. INDICTMENT: Sufficiency: No Motion in Arrest: What Matters Considered. The court on appeal will consider the sufficiency of the indictment though no motion in arrest was filed, but in doing so, in so far as pure matters of exception not contained in the record proper are concerned, it will consider only such assignments as are embraced in the motion for a new trial. 2. FALSE PRETENSE: Indictment: Sufficiency. A hard-and-fast form of indictment charging the obtaining of money by false pretenses is not to be expected; but measured by the statutes and tested by the adjudicated cases, the indictment set out in this case, charging that defendant, an employee in the city lighting department, by falsely pretending he owned and used a horse in his work of inspecting the city lights and by presenting an account for twenty dollars which the city ordinances allowed for a horse used in said work, and by said means obtaining said money, is sufficient. 3. 4. :- : Pleading Ordinance. Since the statute under which defendant was prosecuted for obtaining money from the city covers the false pretenses of all persons, whether officers or city employees or private persons, it was not necessary for the indictment to plead the city ordinance of the city under which he held the office of inspector of city lighting and by virtue of whose provisions he was put in a position to carry out the fraud. : : Within Knowledge of Officers Deceived. If the false representations disclosed by the indictment were touching matters and things fully within the knowledge of the city 5. 6. State v. Foley. officers who are alleged to have been deceived thereby, it is fundamental that the indictment is bad; but where the ordinance allowed an inspector of the city lighting twenty dollars a month for a horse and vehicle when in the opinion of the supervisor they were necessary in the performance of the work, it cannot be said that the supervisor knew that defendant inspector did not have a horse, nor that he was not deceived by defendant's false representations that he did own and use a horse and buggy in his work, and the indictment is not bad on its face, since it was peculiarly within defendant's knowledge that he did not own a horse. Sufficient Evidence: Credibility. Where there is substantial proof, either direct or circumstantial, of every legal element of the offense and necessary to substantiate it as sufficiently charged, its weight and credibility is for the jury, and the court is precluded from further determining its weight. : Dismissal as to one Count: Tantamount to Acquittal on Others. Where the first count of the indictment charged defendant with having obtained by false pretense and representations a "warrant of the value of twenty dollars," and the second count charged him with having obtained by the same means "twenty dollars, lawful money of the United States," a dismissal as to the first count does not operate as an acquittal under the second count. The two counts do not charge precisely the same offense perpetrated by the same identical means. 7. VARIANCE: Must Be Raised in Trial Court. The statute (Sec. 5114, R. S. 1909) requires that a variance between the proof and charge shall be called to the attention of the trial court, and unless that is done the point is not available on appeal. 8. FALSE PRETENSE: Proof of Other Fraudulent Acts: Intent. Where defendant was charged with obtaining twenty dollars in money from the city, in September, 1910, by false pretense, in falsely representing that he owned and used in his work as inspector of the city lighting a horse and buggy, the admission in evidence of other warrants and vouchers evidencing the obtaining by the same means of like sums from the city during other months is not prejudicial, but competent as showing the intent with which the particular act was done. 9. CROSS-EXAMINATION OF DEFENDANT. Defendant cannot complain of questions asked him on cross-examination if he opened the door to such questions by his direct examination, or if they were necessarily embraced in his examination in chief, though they were unnecessary and uncalled for. The State is not bound to follow categorically what was asked him on direct examination. State v. Foley. 10. INSTRUCTIONS: Conflicting: False Pretense. An instruction for the State telling the jury that if defendant had falsely represented that he owned a horse and buggy which he used in the service of the city in inspecting light, they should find him guilty, and an instruction for defendant telling the jury that if in such work he used a horse and buggy belonging to others this fully met the intention and spirit of the law and he should go acquit, are not in conflict. Appeal from St. Louis City Circuit Court.-Hon. Wilson A. Taylor, Judge. AFFIRMED. John A. Gernez for appellant. (1) There was an entire failure of proof to sustain the allegations of the second count. (2) The defendant having a just claim against the city of St. Louis, the fact that he enforced collection of the same by alleged false pretenses is no crime. People v. Thomas, 3 Hill, 169; Comm. v. Duffy, 126 Mass. 467; R. v. Williams, 7 Car. & P. 354; State v. Hurst, 11 W. Va. 54; 2 Bish. Cr. Law (8 Ed.), sec. 466; Comm. v. Henry, 22 Pa. St. 256; State v. Jamison, 37 Ark. 445. (3) The mere opinion expressed by the defendant that the city was indebted to him, is not a statutory false pretense. 2 Bish. Cr. Law (8 Ed.), sec. 1429; State v. Johnson, 41 Tex. 65; State v. Webb, 26 Iowa, 262; State v. Heffner, 84 N. C. 751; People v. Jacobs, 35 Mich. 36. (4) The taking of the first count from the jury by the court, as far as that count was concerned, acted as an acquittal; and the essence of the offense charged being the same in both counts, an acquittal on the first count operates as a bar to a conviction on the second. State v. Hess, 240 Mo. 147; State v. Headrick, 179 Mo. 300; State v. Brotzer, 245 Mo. 499. (5) Proof of obtaining a "warrant" by false pretenses does not sustain a conviction for obtaining by such pretense the sum of twenty dollars, 247 Mo.-39 State v. Foley. for which the warrant was cashed. State v. Mispagel, 207 Mo. 557; Comm v. Wood, 142 Mass. 459; Comm. v. Howe, 132 Mass. 256; People v. Goodhue, 94 Ill. 47; Comm. v. Harkins, 128 Mass. 79; People v. Lorey, 229 Ill. 268; State v. Schild, 159 Mo. 130; State v. Crosswhite, 130 Mo. 358; State v. Dodson, 72 Mo. 283; State v. Bacon, 170 Mo. 161; State v. Kroeger, 47 Mo. 530. (6) It was erroneous in the trial to admit evidence of witnesses, testifying: a. That they had seen defendant at times without a horse and buggy. It was incompetent and of no probative effect, and yet liable to bias and prejudice the minds of the jurors. b. The issuance of other vouchers and warrants than those charged in the indictment, because it was not shown that these had been issued by reason of any false pretenses, similar to those charged in the indictment. c. The so-called confession of the defendant, because the corpus delicti had not been proven. d. The improper cross-examination of defendant, crossexamination being permitted on matters that had not been gone into on direct examination, and which was entirely foreign thereto. State v. Grant, 144 Mo. 56; State v. Hathorn, 166 Mo. 229; State v. Kyle, 177 Mo. 659; State v. McGraw, 74 Mo. 573; State v. Turner, 76 Mo. 350; State v. McLaughlin, 76 Mo. 320; State v. Hudspeth, 150 Mo. 31. (7) The instructions given by the court of its own instance, and at the defendant's request, were inconsistent and diametrically opposed to each other. Elliott W. Major, Attorney-General, and Alex. Z. Patterson, Assistant Attorney-General, for the State. (1) The second count of the indictment, upon which conviction was had, is predicated upon Sec. 4565, R. S. 1909, and charges with certainty every fact which is legally essential to constitute the crime of obtaining money by false pretenses. Appellant filed motion to quash the indictment, urging as the first |