157 Mo. 83 | Mo. | 1900
Charge, forgery in the second degree; result of trial, verdict of guilty as charged in the first count of the indictment and defendant awarded a term of ten years in the penitentiary.
The count referred to is the following: “The grand jurors for the State of Missouri, in and for the body of the county of Jackson, upon their oath present that. Leonard B. Imboden, late of the county aforesaid, on the tenth day of
“ ‘Fairburg, Nebraska, January — , 1899, No.. — .
“ ‘Pay to tbe order of Clark and Cameron Cattle Company, fifteen thousand, one hundred, twelve and 68-100 dollars, and draw on tbe Mercantile National Bank of New York, State of New York,’ and purporting to be signed by -as an officer of said Ilarbine Bank, and purporting to be endorsed by tbe Clark and Cameron Cattle Company, and II. F. Smith, a more particular description of said false, forged and counterfeit draft these grand jurors are unable to give for tbe reason that tbe said draft is in tbe possession of said Leonard B. Imboden, with tbe felonious intent thereby then and there to injure and defraud; against tbe peace and dignity of the State.”
1. Objection is taken to tbe sufficiency of tbe count mentioned. But in consequence of the reasons given in tbe indictment and supported by the testimony, tbe indictment was well enough; tbe law does not require an impossibility, and tbe excuse given in tbe indictment for failure to set forth tbe draft witb more particularity, is sufficient, and this case is unlike that of State v. Stowe, 132 Mo. 199. There, tbe means of information, to-wit, tbe records of Greene county, were open to tbe grand jury; here, there were no such means available.
2. Under tbe authorities, it was not necessary to allege that a revenue stamp was attached to tbe instrument in question. [Kelley Crim. Law (2 Ed.), sec. 797; Miller v. People, 52 N. Y. 304.]
3. The indictment mentions a draft as having been forged; this means, of course, a complete instrument. But in this case there was no evidence that the litigated paper had ever been signed by any one. The testimony having any bearing on this point is that of Hancock, a State’s witness, and the only one who testifies as- to having seen the draft. ITis testimony is the following:
“Q. I will get you to describe as accurately as you can the appearance of this draft, this Harbine draft spoken of?
“A. It was a correspondence draft; it had the New York correspondence printed in the lower hand corner; the writing, of the draft was in a smooth business hand, what I would call a clear Spencerian or business college hand; as to the signature I don’t remember, I remember to have remarked that I wished I could have written as smooth a hand as the man in there, the body of the draft was that smooth handwriting, as to the signature and the appearance of it as to the handwriting and the kind of writing, the penmanship, I don’t remember; who signed it I don’t remember.”
This testimony does not show, except perhaps in a vague inferential manner, that the instrument was signed by any one. Such testimony, to dignify it by such a name, is wholly insufficient to convict a man of forgery, or satisfy a jury of his guilt beyond a reasonable doubt. Forgery can not happen in the case of an unsigned paper. [1 Whart. Crim. Law (10 Ed.), sec. 698 and cases cited.]
For the error mentioned, we reverse the judgment and remand 'the cause.
