210 Mo. 351 | Mo. | 1908
At the December term, 1905, the circuit attorney of the city of St. Louis filed an information, duly verified, in two counts, charging the defendant in the first count with forgery, and in.the second count with uttering said forged paper. The substantive part of both counts is as follows:
“That James B. Carragin on or about the ninth day of April in the year of our Lord, one thousand nine hundred-and three, at the city of St. Louis aforesaid, feloniously and wilfully did forge, counterfeit and falsely make a certain false, forged and counterfeit endorsement upon the back of a certain promissory note by which a pecuniary demand, obligation, right and claim to .money purported to be conveyed, transferred and created, said endorsement purporting to be made by one J. B. Baker, which said false, forged and counterfeit endorsement was so forged, counterfeited and falsely made upon a promissory note of the tenor following, that is to say,
“ ‘$75.00. St. Louis, Mo., April 9th, 1903.
‘ ‘ Thirty days after date I promise to pay to the order of Jas. B. Carragin, seventy-five-00.00 dollars, for value received at the International Bank of St. Louis, with interest from date at the rate of eight per cent per annum.
“ ‘Jas. B. Carragin/
And which said false, forged and counterfeit endorse-" ment on the back of said promissory note is of the ten- or following, that is to say—
“ ‘ J. B. Baker/
with intent thereby then and there feloniously to in
“And the said Richard M. Johnson, Assistant Circuit Attorney as aforesaid, upon his oath aforesaid, further information makes that James B. Carragin on or about the 9th day of April, one thousand nine hundred and three, at the city of St. Louis aforesaid, unlawfully and feloniously had in his custody and possession a certain false, forged and counterfeit endorsement upon the hack of a certain promissory note, and by which said false, forged and counterfeit endorsement as aforesaid, a pecuniary demand, obligation, right and claim to money purported to be conveyed, transferred and created, said endorsement purported to be made by one J. B. Baker, and which said false, forged and counterfeit endorsement was so forged and counterfeited and falsely made upon a promissory note of the tenor following, that is to say,
“ ‘$75.00. St. Louis, Mo., April 9th, 1903.
“Thirty days after date I promise to pay to the order of Jas. B. Carragin, seventy-five 00-00 dollars, for value received at the International Bank of St. Louis, with interest from date at the rate of eight per cent per annum.
“ ‘Jas. B. Carragin/
And which said false, forged and counterfeit endorsement on the back of said promissory note, is of the tenor following, that is to say—
“ ‘ J. B. Baker/
and that the said James B. Carragin did afterwards, to-wit, on or about said ninth day of April, one thousand nine hundred and three, at the city of St. Louis aforesaid, State aforesaid, unlawfully and feloniously with intent to injure and defraud, pass, utter and publish as true the said falsely made, forged and counterfeit endorsément upon the said promissory note to John W. Benstein, he the said James B. Carragin then
The evidence on the part of the State tended to prove that one Doctor Rice and John W. Benstein and the defendant were promoting a World’s Fair concession in 1904, all owning stock and being interested therein. Benstein had loaned the defendant money several times until an indebtedness of several hundred dollars existed in his favor against defendant. Defendant made an application for a loan of $75 and Ben-stein agreed to' loan it to him if he would give additional security, and the defendant said that one J. B. Baker would sign the note. It appears that Benstein then drew the note as set out in the information, and Carragin, the defendant, signed it and took the note to get the additional name on it, and a few hours later returned with the endorsement thereon of J. B. Baker. Thereupon Benstein let him have the $75 and took the note and afterwards deposited it with the International Bank for collection. When it was due it was protested for non-payment. Baker who was away from St. Louis at the time the noté was protested, testified that he promptly wrote the notary and the bank that he had not signed the note, and when he saw Benstein notified him to the same effect. Benstein had never met Baker prior to the execution of the note, but knew of the Baker family and understood that they were people of standing and reputation and he testified that upon the strength of that indorsement he took the note and let the defendant have the money. Benstein notified Carragin that Baker denied his signature on the note and defendant agreed to take it up. In March, 1904, Doctor Rice took from Benstein, among others, this note. Dr. Rice is the prosecuting witness in this case. The defendant admitted the execution of the note by himself and his own indorsement of it and its delivery
The court charged the jury that in the first count of the information defendant was charged with the forgery of an indorsement of the note therein set out, and in the second count he was charged with passing, uttering and publishing as true the forged indorsement. The court then instructed the jury that if at any time within three years next, before the filing of the information, the defendant knowingly and wilfully did forge, counterfeit and falsely make an indorsement of the name of J. B. Baker on the instrument described in the said first count, and that said indorsement purported to be the act of said J. B. Baker, and purported to be the written promise and undertaking of said Baker to pay the sum of $75 to the order of J. B. Carra
Under the evidence and the instructions of the court the jury found the defendant guilty of forgery in the third degree as charged in both of said counts and assessed his punishment on the first count at imprisonment in the penitentiary for two years and on the second count for an additional term of two years. A motion for new trial was lodged in due time on the ground that the verdict was against the law and the evidence and because the court overruled defendant’s motion to require the State to elect on which count it should proceed to the jury and because the instructions were improper and incorrect. This motion was overruled and the defendant duly excepted. The defendant then filed his motion in arrest, challenging the sufficiency of the information on various grounds, which motion was also overruled, and defendant was sentenced in accordance with the verdict, and from that sentence appeals to this court.
I. The principal insistence for a reversal of the judgment is that the court erred in refusing defendant’s motion at the close of the evidence to require the State to elect upon which count it would go to the jury and in instructing the jury that they might convict the defendant of both offenses over the objections and exceptions of - the defendant. This record presents fairly and squarely the proposition that the defendant cannot be tried and convicted of two distinct felonies under one indictment in one trial. It is insisted by the learned counsel for the defendant that while several
By section 1891, Revised Statutes 1899, it is provided: “If any person in committing burglary shall also commit a larceny, he may be prosecuted for both offenses in the same count," or in separate counts of the same indictment, and, on conviction of such burglary and larceny, shall be punished by imprisonment in the penitentiary, in addition to the punishment hereinbefore prescribed for the burglary, not less than two nor exceeding five years.” And by section 2523, it is-provided that “counts for larceny and embezzlement may be joined in the same indictment, and counts for larceny and obtaining any property or instrument by false pretenses or tokens may be joined in the same indictment.” And by section 2524, “when, by law, an offense comprises different degrees, an indictment may contain counts for the different degrees of the same-offense, or for any of such dgrees.”
In some states, for instance, Arkansas, Iowa and New York, it is provided by statute that, “An indictment, except in cases mentioned, must charge but one offense.” But we have no such express statutory provision in Missouri.
In State v. Porter, 26 Mo. 201, the indictment con
It will be observed that in State v. Porter, supra, there was an express statute, which permitted counts for larceny and embezzlement-to be joined in the same
In State v. Gray, 37 Mo. 464, the defendant was indicted for larceny and receiving stolen goods knowing them to have been stolen. He was found guilty by the jury of receiving stolen goods knowing them to have been stolen. It was insisted in this court that the circuit court erred in refusing to compel the State to elect on which count in the indictment a conviction was sought, but this court said: “The practice is well settled and firmly established in this State, that a motion to compel the prosecutor to elect the count on which the trial shall be had, is always addressed to the discretion of the court, and this court will not interfere with the exercise of this discretion, unless it is manifest that it has been abused to the obvious and palpable detriment of the accused. It is often indis
The case of State v. Jackson, 17 Mo. 544, was for an assault with intent to kill, and there were several counts in the indictment, and the defendant moved the-court to compel the State to elect under which count it would proceed, and this was denied. This court said .- “When the court can see from the indictment that there-is but one crime charged, although there are several counts in which the transaction is set forth in a different manner, and with different words, and different averments, calculated to meet the different statements-of the witnesses who are expected to prove the offense, it would cripple the prosecution to make the State-elect,” and held there was no- error in overruling the motion to elect, because, “the indictment shows that the shooting was the offense and the counts set forth and alleged this offense in different phraseology.” And to the same effect was State v. Leonard, 22 Mo. 449, which was an assault with malice aforethought with intent to kill, and the defendant was found guilty on the first count and not on the second.
In State v. Daubert, 42 Mo. 242, the indictment contained two counts, the- first for larceny, and the second for receiving stolen goods knowing them to have been stolen. There were two defendants jointly charged; there was a motion to elect, which was over
In State v. Richmond, 186 Mo. 71, it was ruled that it was proper to join counts for larceny and receiving stolen goods in the same indictment, but in that case the court required the State, at the close, of the evidence, to elect, and the case proceeded for receiving stolen goods alone, and it was ruled that no possible error could have resulted to the defendant from the joinder, in view of the election required by the court.
Numerous other cases are to be found in this State which announce the same general doctrine of the above-cited cases, so that it may be confidently stated that the practice is well settled and entirely proper to insert several counts charging the same felony in different ways to meet the varied phases of the evidence, and that it is not error to join in the same indictment counts for different felonies growing out of the same transaction, provided they are of the same degree and will admit of the same legal judgment, as counts for larceny and receiving stolen goods knowing them to have been stolen, and counts for forgery and for uttering and publishing the same forged instrument as true knowing it to be false and forged. So that while forgery is one offense and uttering a forged instrument as genuine is a distinct offense, as held- by this court in State v. Williams, 152 Mo. 115, and the cases therein cited, they are offenses of cognate character, or in the language of Judge Wagner, in State v. Daubert, 42 Mo. 242, the one is in the nature of a corollary to the other and intimately connected with the same transaction, and there was no error in not requiring the prosecution to elect upon which count it would seek a conviction. But while this court has uniformly ruled that these two offenses may be charged in the same indictment in separate counts, it has not held that a defendant could be convicted of both of said felonies under one indictment and in one trial. No trouble whatever is experienced in submitting to a jury different grades of the same offense and leaving them to find the particular degree of offense of which the prisoner may be guilty under proper instructions as to the essentials of each grade, as in murder and manslaughter,
In Crawford v. State, 31 Tex. Crim. l. c. 54, the prisoner was indicted for forgery and uttering a forged instrument, and under the charge of the court was found guilty of both offenses and punished by imprisonment in the penitentiary for two years for each;
In Mayo v. State, 30 Ala. 32, Walker, J., in re
In State v. Lincoln, 49 N. H. l. c. 471, the court said: “Where different offenses are joined in one indictment, the prosecutor will not be compelled to elect at the outset, for that would take away all the advantage of adapting the indictment to the contingencies of the evidence; but the court will always take care that the defendant is not convicted of two offenses
In Wharton’s Crim. Pleading and Practice (9 Ed.), section 737, it is said that the practice at common law, when there is a general verdict of guilty upon several •counts in the indictment relating to the same transaction, is to render judgment on the count charging the highest grade of offense, the prosecution either expressly or tacitly withdrawing the other counts. And this is the rule in New York, and we think this practice should he kept in view in considering the cases from those states in which the practice still obtains of restricting the jury to a verdict of guilty or not guilty and leaving it to the court to assess the punishment.
In People v. Adler, 140 N. Y. 331, the indictment was for forgery in one count and for uttering the same forged instrument in another count, and the court held that the joinder was proper, and said: “Where the accusation is of the commission of a certain crime, and the indictment sets-forth two or more offenses of the same nature, based upon the same or a continuous set of facts, either of which offenses make him guilty of the same crime, the prisoner cannot be prejudiced.” In People v. Frank, 28 Cal. 513, it was held that where, in defining an offense, a statute enumerates a series of acts, either of which separately, or altogether, may constitute the offense, all such acts may be charged in a single count, for the reason that, notwithstanding each act may by itself constitute the offense, all of them together do no more, and likewise constitute but one and the same offense; and that an indictment which charged the defendant in the same count with having forged an indorsement on a draft, and also with having uttered and passed the draft knowing the forged indorsement to have been written thereon, did not charge the two offenses. With us, however, the two
From the foregoing authorities we deduce the principle that it would have been proper for the circuit court to have instructed the jury on the evidence produced in- this case, .after defining wbat would constitute a forgery of the indorsement, and uttering the same, that they might find the defendant guilty under either count of the indictment accordingly as they found the facts to be, but not upon both, or have required the prosecuting attorney at the close of the evidence to have elected upon which count he would ask a conviction. In instructing the jury that they might find the defendant guilty under both counts, and in refusing to require the prosecuting attorney to elect after all the evidence was in, the court committed reversible error. We know of no case under our practice in which an accused may be tried and convicted of two distinct felonies except in the case of burglary and larceny, which is expressly allowed by statute.
II. Again it is insisted that there was a fatal variance between the instrument described in the information and the note offered in evidence. The information did not allege and set out .in its description of
III. As to the last, assignment of error, that the indorsement was not such an “instrument or writing” as is contemplated by the statute denouncing forgery, we think that an indorsement comes clearly within the letter and the spirit of our statute, section 2019, Revised Statutes 1899, which provides: “Every instrument, partly printed and partly written, or wholly printed, with a written signature thereto, and every signature of an individual, firm or corporate body, . . . and every writing purported to be such signature, shall be deemed a writing and a written instrument within the meaning of the provisions of this chapter.”
For the reason that the court erroneously refused to require the circuit attorney to elect on which count he would go to the jury and directed the jury they could convict defendant on both counts, and defendant was convicted on both counts, the judgment is reversed and the cause remanded for new trial.