244 Mo. 215 | Mo. | 1912
The defendant was convicted in the circuit court of Washington county, and sentenced to two years in the penitentiary under an indictment filed March 14, 1911, of which the material parts are as follows:
“The grand jurors for the State of Missouri, summoned from the body of Washington county, impaneled, charged and sworn, upon their oaths, present that R. H. Gibson, late of the county aforesaid, on the---day of March, 1910, at the said county of Washington, State aforesaid, did then and there wilfully, unlawfully and feloniously have in his custody and possession a certain falsely made, altered, forged*217 and counterfeited promissory note purporting to be made by R. H. Gibson and W. W. Turner, which falsely made, altered, forged and counterfeited promissory note is as follows, that is to say:
“ ‘$310.00. March 1, 1910.
“ ‘One year after date, for value received, I promise to pay to the order of J. J. Townsend three hundred ten dollars, at Belgrade, Mo., with interest after date at the rate of 8 per cent per annum, and if not paid at maturity and collected by an attorney or by legal proceedings, an additional sum of 10 per cent on the amount of this note as attorney’s fee.
No......., Due March 1, ’ll. . R. H. Gibson,
W. W. Turner. ’
“And the said R. H. Gibson, did afterwards, to-wit, on the day and year aforesaid, at and in the county aforesaid, wilfully, unlawfully and feloniously, with intent to injure and defraud, did sell, exchange and deliver the said falsely made, altered, forged and counterfeited promissory note to one J. J. Townsend, in the county of Washington, State of Missouri, with the wilful, unlawful and felonious intent to have the same altered or passed, he, the said R. H. Gibson, then and there knowing the said promissory note to be falsely made, altered, forged and counterfeited, against the peace and dignity of the State. ’ ’
The indictment cannot be held valid under any section of the statute.
Under section 4654 it is necessary that the instrument shall be in the defendant’s possession, with the intent on his part to utter, or cause the same to be uttered. No such allegation is made in the indictment. Section 4655 requires that the instrument shall be sold or exchanged with the intent on defendant’s part to have the same uttered or passed. The indictment alleges that the sale was made to Townsend with the intent to have the same altered or passed.
Sections 4643 and 4644 apply only to instruments purporting to be executed by a bank. [State v. Milligan, 170 Mo. l. c. 223.]
.The judgment is reversed and the cause remanded.
The foregoing opinion of Roy, C., is adopted as the opinion of the court.