166 Mo. 575 | Mo. | 1902
Under an indictment containing two counts, one charging defendant with having forged, counter
The salient facts as disclosed by the record'are substantially as follows:
The defendant, a negro, had for sometime been in the service of one Joseph Howard, and Howard being indebted to him on that account on June 30, 1900, gave him a check signed by himself on the Bayne & Williams Bank, a hanking corporation doing business in Fayette, Missouri, for the sum of thirteen dollars. The check was thereafter altered without the knowledge or consent of Howard, by changing the word “thirteen,” where it was written in the check, to the -word “nineteen,” and the figures $13 as therein written to $19. The remainder of the check was in the handwriting of Howard as originally written. On the same evening of the date of the check it was presented at the store of H. & S. Loeb & Co., in Eayette, by a colored man, and exchanged for one dollar’s worth of goods and $18 in cash. As to who passed the cheek and as to what occurred in the store, the testimony of the witnesses for the State was conflicting.
Charles Myer, the manager of the store, and the party to whom the second count of the indictment charges the defendant with uttering and passing the check, testified that a negro man brought the cheek into the store and back to the cashier’s desk, and asked him to cash it; that he sold the party goods amounting to $1 and gave him $18 in money. This witness after stating that defendant was the man who sold him the check, stated that he was not certain that defendant was the man, but that he looked like him.
Geo. W. Sexton, a witness for the State, testified that he was a clerk in the same store; that the negro man came in and
This was all the evidence on the par"- of the State. The defendant demurred to the State’s evidence, and asked the court to instruct the jury that under the indictment and evidence in the case the jury should find the defendant not guilty, which demurrer the court overruled and refused to so instruct the jury, to which action of the court the defendant excepted.
The defendant testified in his own behalf, and denied altering or changing the check given him by Howard. The State then recalled Joseph Howard in rebuttal who testified that he had seen the handwriting of the defendant and that he would say that the name on the back of the check was in his handwriting. This was all the testimony in the case.
It is claimed by defendant that the court should have sustained his demurrer to the evidence, because of the failure of the State to prove that the check described in the indictment was proven to have been forged. This contention is based upon the fact that the statute (section 2001, Revised Statutes 1899) under which the first count of the indictment was drawn, provides that, “Every person who shall forge or counterfeit, or falsely make or alter......any bill of exchange, draft, check, certificate of deposit,.....shall be guilty of forgery in the second degree,” and the argument is that the forging of a check and the fraudulent alteration of one are different acts, and of a different nature, and, even if there had been positive proof that defendant altered the check, he could not have been convicted under the first count of the indictment for that offense. This argument would have more force but for the fact that the alteration of a check so as to give it a different effect is as much a forgery at common law as if the name of the person purporting to have drawn it were forged [2 Russell on Crimes, star page 318 (Ed. 1853), 2 East P. C. 582; State v. Thornburg, 6 Iredell 79], and the forgery may be especially
State v. Flye, 26 Me. 312, was a proceeding by indictment under a statute which makes it a felony for any person, “who with intent to defraud, shall falsely make, alter, forge or counterfeit any instrument in writing, being or purporting to be the act of another, by which any pecuniary demand or obligation, or any right or interest in or to any property whatever shall be, or purport to be created, increased, transferred, conveyed, discharged or diminished,” and it was held, under an indictment for forging an order which set it out as it was when altered and under the proof that it was originally drawn for nine dollars and had been altered to nineteen dollars, that defendant might be convicted under the indictment. [2 Achbold Criminal Procedure, note 1569.]
It will be observed that the statutes under which the defendant was prosecuted in the case last cited is in almost the exact language of ours, in that, to alter any instrument therein described with intent to defraud is forgery, and may be so charged, but it is also true that an indictment is good which charges the crime of forgery without specifying in what particular, and that a conviction may be had under such an indictment notwithstanding the evidence may show that the forgery was’ committed by altering the instrument.
Although it is conceded by counsel for defendant in his brief that the evidence as to whether or not defendant was identified as the person who passed or uttered the check was conflicting, yet he insists that the demurrer to the evidence should have been given. But this position is untenable, for it has always been held by this court, that when there is any substantial evidence of the defendant’s guilt, as in this case, the case should go to the jury, its weight being for their consideration.
The State’s first instruction is criticised upon the ground, as claimed, that it submits to the jury an issue not raised by the
The point is also made that the first instruction asked by defendant should have been given because witness Myer, the-party alleged in the indictment as the one to whom the check was sold, was simply in the employ of H. & S. Loeb & Oo., and that the goods and the money given in exchange for the cheek were their property. The charge in the indictment is not to defraud any particular person, but with a general intent to defraud, and so if it was uttered or sold with such intent, it does not make any difference to whom the money and property for which it was sold or exchanged belonged.
There was ample evidence to justify the verdict. The judgment is affirmed.
