245 Mo. 549 | Mo. | 1912
— At the June term, 1911, of the circuit court of Randolph county, appellant was convicted of the offense of uttering a forged check, knowing-the same to be a forgery. The jury assessed his punishment at imprisonment in the penitentiary for a
The information was based on Sec. 4656, R. S. 1909, and charged that the defendant, with intent to defraud one George Hoffberger, sold, exchanged and delivered to said Hoffberger, as true, for the valuable consideration of five dollars, a falsely made and forged check purporting to have been drawn by John Dumont on the Bank of Moberly, for the sum of five dollars, payable to Dan Pattison or bearer, knowing that said check was falsely made and forged.
The evidence for the State, which was somewhat meagre, tended to show the following facts:
At the time the offense was alleged to have been committed George Hoffberger was employed as a bartender at the salmon of Tony Fiorita in the city of Moberly. On March 31, 1911, the defendant went to Fiorita’s saloon, presented the check in question to Hoffberger, and asked him cash it. Hoffberger took five dollars from the money drawer, and paid it to the defendant in exchange for the cheek. Defendant then purchased half a pint of whiskey, paid for it out of the money received for the check, and left the saloon. It was shown by the testimony of Dumont, and by the testimony of other witnesses as to admissions made by the defendant after he was arrested, that the check was a forgery. The testimony concerning the admissions made by the defendant also tended to prove that at the time he passed the check he knew it was a forged instrument.
The defendant did not testify in his own behalf, and the only evidence introduced by him was the testimony of Fiorita to the effect that the money given in exchange for the check belonged to Fiorita and not to Hoffberger.
Such additional facts as are necessary to an understanding of the questions before us for review will be stated in the course of the opinion.-
II. The court instructed the jury upon the subjects of reasonable doubt and presumption of innocence, and gave a general instruction directing the jury that upon a finding of the facts charged in the information they should find the defendant guilty. Appellant does not complain of the instructions given, but assigns as error the action of the court in refusing to instruct the jury as to the law upon admissions made by the defendant against himself and introduced in evidence by the State.
The refusal of the court to instruct the jury as complained of cannot avail the defendant, for two reasons : First, such an instruction is always given, when given at all, at the instance of the State, and the refusal of the court to give it in this ease was clearly favorable to the defendant and therefore not prejudicial error. Second, although the record shows that the- defendant requested such an instruction and excepted to the action of the court in failing to give it, the refusal to give such an instruction was not made
III. At the close of the evidence for the State, and again at the close of all of the evidence, the defendant asked an instruction directing a verdict of not guilty. The court refused the instruction and appellant assigns such action of the court as error. This complaint calls for a review of the incriminating facts relied upon by the State to sustain the verdict, in so far as the sufficiency of the evidence is challenged by appellant.
It is contended that the evidence fails to show that the check described in the information was a forgery. The check purported to be signed by the witness Dumont. That witness testified in behalf of the State that the defendant had formerly worked for him and that he had paid him with checks upon the, bank upon which the check in question was drawn, but he further testified that the check shown to him and introduced in evidence was not signed by him and was not his check. It was also in evidence that the defendant stated after his arrest that the check was passed by. him, but that it had been signed by a colored boy in a wine room of a saloon. We think this testimony sufficiently proved the forgery.
It is also urged that, as the information charged that the check was sold, exchanged and delivered, for
Sec. 4921, R. S. 1909, is as follows:
“It shall be sufficient in any indictment for any offense where an intent to injure, cheat or defraud shall be necessary to constitute the offense, to allege that the defendant did the act with such intent, without alleging the intent of the defendant to be to injure, cheat or defraud any particular person; and on the trial of such offense, it shall not be necessary to prove an intent on the part of the defendant to injure, cheat or defraud any particular person, but it shall be sufficient to prove that the defendant did the act charged with an intent to injure, cheat or defraud.”
' It will be observed that the statute quoted consists of two parts, the former dealing with the charge and the latter with the proof. Each is independent of the other. Whether the pleader unnecessarily alleges the name of the person intended to be defrauded, or omits such name as authorized by the first part of said section, the latter part is equally applicable and in either case it “shall be sufficient to prove that the defendant did the act charged with an intent to injure,
But, in addition to the foregoing, the averment of the information is that the check was passed with intent to cheat and defraud George Hoffberger, and there was not a variance between this averment and the testimony, for, as stated in 2 Bishop’s New Grim. Proc., Sec. 427, “the intent is presumed ... to. defraud the one to whom the defendant, with knowledge of the forgery, passed or offered the forged instrument for value.” [19 Cyc. 1423; Commonwealth v. Starr, 86 Mass. 301.]
It is further urged that the court should have given the instruction requested, for the reason that the testimony failed to prove that the defendant knew that the check was a forgery at the time he is charged with having passed it. The testimony shows that after the defendant was. arrested he admitted to the witness Turner that he had passed the check on Hoffberger, but that he did not sign it; that “one of the darkeys wrote the check. It was not written by him, but while they were in the wine room.” While this testimony is. rather scant on the question of the defendant’s guilty knowledge, it is uneontradicted, and we think it warranted a finding that the defendant knew it was not Dumont’s check at the time he dis
A thorough examination of the record has left little doubt as. to the defendant’s guilt, and although the punishment of five years, in its severity, seems out of proportion to the offense charged and proved, that was a matter within the province of the jury. The record does not disclose prejudicial error, and accordingly the judgment is affirmed.