121 Mo. 447 | Mo. | 1894
I. The indictment is well enough and follows approved forms. 3 Chit. Crim. Law, 1048; 3 Greenl. Ev., sec. 104; State v. Fisher, 65 Mo. 437; State v. Yerger, 86 Mo. 33. And under our statute, the indictment need not charge that defendant did the act in question, with the intent to injure, cheat or defraud any particular person, nor need such intent be proved on trial; but it is only necessary to prove that defendant did the act charged, with an intent to injure, cheat or defraud. R. S. 1889, sec. 3983. State v. Scott, 48 Mo. 422.
In order to be the subject of forgery, it was unnecessary that the order in question, if genuine, should have been addressed to any person by name. This ruling has passed into precedent. People v. Krummer,
It is true, it must be calculated to deceive (3 Greenl., Evid., sec. 105), but by this is not meant that it shall deceive the skillful, the experienced or the wary; it is sufficient if the writing be such as would be likely to impose on a person of ordinary observation. Ib. No matter how defective may have been the forgery it is enough, if there is a possibility of fraud. 1 Whart, Crim. Law [9 Ed.], sec. 695; State v. Dennett, 19 La. Ann. 395; Costley v. State, 14 Tex. App. 156; Regina v. Winterbottom, 2 C. & K. 37; State v. Covington, 94 N. C. 913. And it does not lie in the mouth of the forger to claim immunity for his crime because, if the man he imposed upon had been vigilant, he would not have been deceived. Garmire v. State, 104 Ind. 444.
Besides, the crime of forgery is complete by the making of any instrument with intent to defraud, which at common law or by statute is the subject of forgery. Uttering or publication has nothing to do with the completeness of the offense. State v. Fisher,
III. There was no error in giving the third instruction on behalf of the state. The evidence showing defendant’s guilt was not circumstantial, or at least •only a small portion of it. The most of it was positive and direct, and showed the guilt of defendant in a most pronounced manner. The possession of a forged instrument or the uttering of it by one in the county where the indictment is found, is strong evidence to show that the forgery of the instrument was committed by him in the same county. State v. Yerger, 86 Mo. 33; State v. Rucker, 93 Mo. 88.
And not to be forgotten are the false statements •defendant made to Herrick respecting his having, worked for Coppersmith for nineteen days, nor his subsequent admissions that he had never seen Coppersmith at the date of the order; had merely heard of him, etc.; that he “could not get work and must have clothes.” Nor is it to be forgotten that the order when first presented to Herrick was signed “Mr. Coppersmith,” and being rejected in that form, defendant shortly returned with it in its present form; showing that defendant forged or knew of and procured the forgery of the amended order.
IY. Instructions 1 and 2 given on behalf of the state were erroneous in not submitting to the jury the issue raised by the allegations of the indictment and defendant’s plea.of not guilty, whether the act charged if done, was done with the “intent to injure or defraud.” State v. Warren, 109 Mo. 430; 2 Thompson on Trials, sec. 2154. As it was necessary to allege and prove the doing of the act, with such an intent, of course it was necessary to instruct upon such intent.
VI. Instruction number 2 asked by defendant-was properly refused because it was faulty in these particulars : There was not a particle of evidence to show that Coppersmith ever drew an order such as the one in question, nor indeed of any kind, so that the instruction was faulty as being misleading, and as having no-evidence on which to base it. And it was faulty because in order to constitute a forgery, it was not at-all necessary that the forged .order should imitate or resemble an order such as Coppersmith would have-drawn.
For the errors aforesaid, judgment reversed and. cause remanded.
