221 Mo. 478 | Mo. | 1909
This cause is now pending before this court upon appeal on the part of Noah Jackson, the defendant, from a judgment of the Clay Circuit Court convicting him of forgery in the second degree.
On September 18, 1907, the grand jury of Clinton county returned in open court an indictment charging defendant with forgery in the second degree, it being alleged' that on May 1, 1907, he forged, counterfeited and falsely made a certain evidence of debt, commonly known as a deposit slip or ticket, on the Farmers’ Bank of Cameron, purporting to have been made and issued by said hank for the sum of $19,000. There were two counts in the indictment, both being identical, except as to the tenor of the forged instrument, one charging that the evidence of debt purported to he signed “C. E. Packard, Cashier, DeHart,” the other purporting to he signed “C. E. Packard, Cashier, D.”
On the second day of October, 1907, defendant filed an application for change of venue from Clinton county, charging bias and prejudice on the part of the inhabitants of that and all other counties in the Fifth Judicial district. Thereafter, said application and petition were considered and the change awarded to Clay county, and the cause ordered transferred and the transcript of all proceedings certified, which was ae
Upon the trial of this cause the evidence developed upon the part of the State tended to prove that at all the times mentioned in the evidence, the Farmers’ Bank of Cameron was a banking institution, duly organized and incorporated, and doing business as such under and by virtue of the laws' of this State. C. I. Ford was president; N. S. Goodrich, vice-president; C. E. Packard, cashier; H. B. Cooper, assistant cashier; T. W. Parton, chief bookkeeper, and Louis- DeHart, assistant bookkeeper. For several years defendant had been doing business with this institution, at times depositing money therein and at other times borrowing therefrom, he being, at the date of the commission of his offense, indebted thereto in the sum of about $16,000.
On the 8th day of March, 1907, defendant went to the bank about the noon hour, and at that time Louis DeHart and Mr. Ford were present. Said DeHart was at that time acting as receiving teller, and was not acquainted with defendant. When defendant arrived at the bank he told DePIart that he wanted to deposit $100’. DeHart asked him to whose credit the deposit should be placed, to which defendant replied, “Noah Jackson.” DeHart thereupon inquired if he was Noah Jackson, to which defendant answered in the affirmative, whereupon he produced $100 in currency, and after the same had been counted and received by DeHart, he asked him for his pass or deposit book, and
At the close of the evidence the defendant requested that the court give an instruction to the jury in the nature of a demurrer to the evidence, directing them that under the law and the evidence they would find tire defendant not guilty. This instruction was by the court refused, to which action and ruling of the court the defendant then and there at the time excepted. The court then gave instructions to the jury fully covering every phase of this case to which the testimony was applicable. It is unnecessary to here reproduce the instructions given and those refused. We will give them such attention as may be required during the course of .the opinion. The cause being submitted to the jury they returned a verdict finding the defendant guilty as charged in the second count of the indictment and assessed his punishment at a term of five years in the penitentiary. Timely motions for new trial and in arrest of judgment were filed by the defendant and by the court taken up and overruled. Sentence and judgment followed in accordance with the verdict. From this judgment the defendant prose
OPINION.
The record in this cause presents numerous assignments of error as a basis for the reversal of this judgment. We will give the complaints made by the appellant, during the course of the opinion, such attention as their importance requires and merits.
Preliminary to the treatment of the assignments of error on the part of the appellant it is well that the suggestion of the learned Attorney-General, that nothing but the record proper can be considered, first be disposed of. The insistence upon this proposition is that the defendant was duly sentenced and judgment pronounced before his motion for a new trial was passed upon, and upon this state of the record it is insisted that when the defendant was asked, in the presence of his counsel, if he had any legal cause to show why judgment should not be pronounced, it was his duty to call the court’s attention to the fact that his motion for new trial was pending, and failing in this he must be held to have waived the same. The record in this cause discloses that after the return of the verdict finding the defendant guilty and before sentence and judgment was rendered, the defendant, within the time prescribed by statute, filed his motion for new trial. Subsequent to the filing of the motion for new trial and while it was pending, the court sentenced and entered judgment against the defendant, and afterwards formally overruled the motion for a new trial.
We have reached the conclusion that the insistence of the Attorney-General, under the provisions of the statute, cannot be maintained. The defendant filed his motion within the statutory period after the re
The disclosures of the record in this cause are unlike those presented in the cases of State v. Pritchett, 219 Mo. 696, and State v. Fraser, 220 Mo. 34. In those cases the records disclosed that after the return of the verdicts judgments were entered upon such verdicts, and subsequent to sentence and judgment defendants filed their motions for new trial. In other words, the motions for new trial were not filed until sentence and judgment had been entered against the defendants. Therefore it follows that those cases were controlled by the provisions of section 2689, Re
Directing our attention to the complaints of the appellant.
I.
It is insisted by learned counsel for appellant that the court committed error in overruling the motion for discharge of the defendant, on the ground that the court was without jurisdiction to try him on the indictment before the court. This motion, which it is insisted should have been sustained, was predicated upon the ground that the clerk had failed to indorse on the indictment the filing and the date thereof.
At the very threshold of the consideration of this motion we find that the record1 proper fails to disclose the filing of any such motion or any ruling of the court thereon. If the rules applicable to motions for new trial and in arrest of judgment are applicable to motions of this character, as announced in Stark v. Zehnder, 204 Mo. l. c. 449; Pennowfsky v. Coerver, 205 Mo. l. c. 137, and cases therein cited, then it would logically follow that this motion is not before us for review. While it is true the bill of exceptions preserves this motion and recites the action of the court upon it, and the exceptions of the defendant to such action, yet, as has repeatedly been held by this court, this is insufficient- to show that in fact the motion was filed. When we come to look to the filing of a motion which this court is called upon to review, we seek the record proper, and there ascertain if the motion was in fact filed, and as to whether or not the court took any action upon such motion. We have carefully
But aside from all this, there is no merit in this motion. The record' in this cause discloses that on the 13th day of September, 1907, the sheriff of Clinton county, Missouri, returned into open court the writ commanding him to summon a grand jury, duly executed. Some of those served were excused and others summoned in their stead.. The record discloses that the grand jurors summoned as heretofore stated, appeared at the time and place as ordered by the court, and were duly impaneled, sworn and charged and instructed as the law requires. The court appointed W. A. White as foreman of said1 body and they were then ordered by the court to retire to their room to consider of their presentments and indictments. The record further discloses that on the 18th day of September, 1907, the same being the 9th day of the regular term of said court, the grand jurors appeared in open court, and by their foreman in the presence of his fellows, presented1 and made return of the indictment of the State of Missouri v. Noah Jackson, forgery, which said indictment, the record discloses, was by the court examined and found indorsed a true bill by the foreman and signed by the presecuting attorney, which said indictment was ordered filed by the court. Then follows in the record a copy of the indictment as returned by the grand jury into court, and is the indictment as is shown by the record in this cause upon which the defendant was tried and convicted.
In State v. Grate, 68 Mo. 22, this court, speaking through Judge Sherwood, first refers to the statute that indictments found and presentments made by grand juries shall be presented by their foreman, in their presence, to the court, and shall be filed and
When this indictment was returned into open court, presented to the court and deposited with the clerk, it was, in contemplation of law, filed. The indorsement by the clerk simply furnishes evidence of the filing. The entire record in this cause discloses that the indictment upon which the defendant was tried was the one returned into open court by the grand jury and presented to the court and deposited with the clerk by the foreman of the grand jury. This was fully recognized by the defendant himself. He executed a bond to answer the indictment returned into open court; he entered his plea of not guilty to this indictment; made application for a change of venue, and the transcript of the proceedings from the
II.
This brings us to the consideration of the contention upon which counsel for appellant seem to chiefly rely for a reversal of this judgment, that is, that the deposit slip or deposit ticket issued by the Farmers’ Bank of Cameron, Missouri, designated in the indictment, is not the subject of forgery. To fully appreciate this proposition it is perhaps well to reproduce the challenge to the sufficiency of this indictment as contained in the brief of learned counsel for.appellant. Counsel make the inquiry: “Is the indictment good in this case?” Then assert, “It charges the defendant with having forged a certain evidence of debt, commonly known as a deposit slip ... or deposit ticket, on the Farmers’ Bank of Cameron, Missouri, and undertakes to set out in the indictment the alleged forged instrument in haec verba, without a single averment of any extrinsic matter, which could give the instrument alleged to -have been forged any force or effect beyond what appears on its face.. The deposit slip has no legal validity and affects no legal rights so as to injure another, which should appear from the indictment charging the offense, that such was its legal character, either by the instrument itself or by matter aliunde which will show it to be of that character. The indictment fails to comply with this rule. ’ ’ It is further insisted upon this proposition that a deposit slip or deposit ticket as alleged in the indictment, is not such an evidence of debt as comes within
It will be observed that this section of the statute specifically designates certain instruments which are the subject of forgery, that is to say, promissory notes, bills of exchange, drafts, checks, certificates of deposit; then concludes, “or other evidence of debt being or purporting to be made or issued by any bank incorporated under the laws of this State, or of any other State,” etc.
The contention of learned counsel for appellant is that the deposit slip or deposit ticket as alleged in the indictment, is not such an evidence of debt as is contemplated by the provisions of the section of the statute indicated, which would subject the persons forging, altering or counterfeiting such slips or tickets to the charge of forgery under the provisions of that section.
After a most careful consideration of all the authorities applicable to this proposition we are unable to give our assent to this insistence. Our- attention upon this proposition is directed by counsel for appellant to the cases of State v. Schuchmann, 133 Mo. 111; and State v. Krueger, 134 Mo. 262. In the
The deposit slip or ticket as alleged in the indictment is substantially an acknowledgment that so much money was deposited by the defendant to his credit in the Farmers’ Bank of Cameron. In the indictment it is charged that the Farmers’ Bank of Cameron issued this deposit slip or ticket and that it was an evidence of debt, and in our opinion it does not infringe upon the rule as announced in the cases to which our attention has been called. It may be that a chicken-house building is not of like kind to a shop, store, booth, tent or warehouse, but the statute now under discussion enumerates promissory notes, bills of exchange, checks, drafts and certificates of deposit, and in our opinion the deposit slip or ticket alleged in the indictment in this case is at least a like kind to a certificate of deposit designated in the statute. It will certainly not be contended that it must be identical with the kinds of evidences of debt as enumerated', for the Schuchmann case only requires that it shall be of like kind. A certificate of deposit and the deposit slip or ticket as alleged in the indictment are used for the same purpose — of indicating to the depositor to whom the slip is delivered that so much money is deposited in the bank that issues the paper. The certificate of deposit, it is true, is more formal, yet so far as indicating that the money of the depositor has been placed in the bank, it does not do it more effectively than the deposit slip alleged in the indictment, which is daily used by hundreds and thousands of banks in this country in the transaction of
It certainly will not be seriously contended that in a dispute between the bank and a depositor as to the amount of a deposit, this deposit slip or ticket would not be of the most highly important evidence in settling a controversy between the depositor and the bank as to the amount of money deposited. The very purpose of the issuance by the bank of a deposit slip and its delivery to the depositor is to furnish evidence to him that he has deposited in the bank the amount of money designated in such deposit slip. While it may be true that this deposit slip is not a negotiable .instrument, yet its non-negotiability falls far short of in any way destroying or affecting the element of evidence of debt manifested upon the face of such deposit slip.
In the civil case of First National Bank v. Clark, 134 N. Y. 368, a case cited by appellant, Judge Parker fully recognized that a deposit slip is an evidence of debt. He says: “The use of a deposit slip is well understood. It constitutes an acknowledgment that the amount of money named therein has been received.” It is true that in the usual and ordinary course of banking these deposit slips are not used with the view of paying money upon the presentation of the slip to the bank, for it may be, as is said by Judge Parker in the ease last cited, that all or nearly all of the money may be checked out at the moment of making the deposit slip; but it is, as is held in that case, an evidence of debt; in other words, an acknowledgment that the amount of money named therein has been received. It may be conceded that a deposit slip
In Hotchkiss v. Mosher, 48 N. Y. 478, it was held that the certificate was an acknowledgment of so much money deposited with the bank. “It was of the same force and effect as a receipt for money,” and it was said in that case that “a simple certificate like the one in question is not the basis of an action like a promise in writing, but would be evidence, like a receipt, to raise an implied promise to pay in an action for money had and received.” Manifestly that case treated the certificate as an evidence of debt, otherwise it would not have been admissible in evidence.
Our attention is also directed by counsel for appellant to the case of Bank v. Bank of Kansas City, 102 Mo. App. 357. Manifestly that case furnishes
Our attention is also directed to the case of Weisinger v. Bank, 10 Lea (Tenn.) 330. An examination of that case demonstrates very clearly that it has no application to the facts in the case at bar. There the son of the party making the deposit signed a deposit slip to be deposited with the bank. The bank did not undertake to issue any certificate or duplicate deposit slip to the depositor; hence it was ruled in that case that the deposit slip as signed by the young man making the deposit for his father was merely a memorandum to guide the bank in making the entries in the book. In other words, a note to help the memory. The facts in that case are widely different from the case at bar, where the bank issued a duplicate deposit slip, not for the purpose of helping the memory of the cashier of the bank in making entries, for this duplicate deposit slip passes out of the hands of the bank and is issued to the depositor, and is issued but for one purpose, that is, to furnish to the depositor evidence of the amount of money he has deposited with the bank, and . unless such money deposited is drawn out by the depositor by check or otherwise, the depositor is entitled to recover such money.in an action for money had and received, upon the introduction of his deposit slip, which prima-facie shows that he has that amount of money deposited in said bank.
In Long, Executrix, v. Straus, 107 Ind. 94, it was expressly, ruled that an action might be maintained upon a receipt in this form: “Received of Joseph S. Long sixteen hundred dollars, on deposit, in National
We stop here to inquire, if the deposit slip or ticket as alleged in the indictment, was. not issued and delivered to the defendant for the purpose of furnishing him evidence as to how much money the bank owed him by reason of such deposit, then what was the necessity of issuing it at all? Unless these deposit slips which are in such common use by all the banks over the country are issued for the purpose of furnishing evidence of the indebtedness of the bank by reason of such deposit slips, then clearly they should be treated as mere worthless paper. If the deposit slip or ticket as alleged in the indictment is not to be construed as an evidence of debt, and it is to be held that depositors indiscriminately may make a deposit of $50 in a bank, add a cipher to it and make it $500, or make a deposit of $500, add a cipher and make it $5,000, with the privilege of entering the courts of the country contesting for the recovery of the amount in the altered instrument with the bank for money had and received, without subjecting themselves to
Giving attention to the other complaint challenging the validity of the indictment in this cause, that is, that “the deposit slip has no legal validity and affects no legal rights so as to injure another,” what was said in State v. Sharpless, 212 Mo. l. c. 194 and 195, is applicable to this subject, namely: “It is fundamental that one of the essential elements of this crime is the intent to defraud, and it is only essential that the instrument to be the subject of forgery should be of some apparent legal efficacy for injury to another. On the other hand, instruments which upon their face are utterly valueless and have no binding force or effect for any purpose of harm,, liability to injury to anyone, cannot be the subject of forgery. This rule is fully recognized both at common law and in the highest courts of the several States of the Union. [State v. Cordray, 200 Mo. 29; Colson v. Com., 110 Ky. 233; King v. State, 43 Fla. l. c. 218, 219; 19 Cyc. Law and Proc., 1370; and cases cited in note 94.] ”
In People v. Tomlinson, 35 Cal. 503, the object and purposes of the statute against forgeries were very clearly and tersely stated. It was said: “The purpose of the statute against forgeries is to protect society against fabrication, falsification, and the utter
Applying the rules of law as indicated in the cases last cited, we are of the opinion that the charge in the indictment in the case at bar fully meets all the requirements of the rules announced in those cases. "We have heretofore fully discussed the nature and character of the deposit slip as well as its force and effect. The indictment charges that this deposit slip was an evidence of debt, and the deposit slip was embraced in the indictment and shows upon its face its legal efficacy, and clearly furnishes evidence of the rights and claims of the depositor to whom such duplicate slip was issued. This deposit slip manifestly purports upon its face to be good and valid for the purposes for which it was intended and which might operate to the prejudice of the rights of another; hence there was no necessity for any allegation in the indictment of any extrinsic matter to give the instrument alleged to have been forged any force and effect beyond what appears on its face. The instrument speaks for itself, and clearly shows that it is such an instrument as is susceptible of affecting legal rights so as to injure another; hence it follows that upon this complaint the ruling must be adverse to the appellant.
It is not out of place to direct attention to some of the cases in this State as indicative of the views of this court upon the subject of the offense of forgery. While in the case of State v. Gullette, 121 Mo. 447, the offense of forgery charged was under a different
In the case of State v. Eades, 68 Mo. 150, the forgery charged was that defendant forged a certificate of indebtedness of the City of Kansas. It was insisted in that case as in the case at bar that the instrument set out in the indictment was not such as can be the subject of forgery, because the charter of the City of Kansas does not confer on the Mayor and Common Council the power to issue the same. In treating, of that proposition this court, speaking through Judge Norton, said: “Upon a statute of
Also in the case of State v. Kattlemann, 35 Mo. 105, it was expressly ruled by this court that “altering the date of a receipt from the 11th of April to the 1st of April, if done fraudulently, that is, if done to prejudice the rights of another, and the more easily or successfully to enable the party altering it to obtain a double credit for money paid', is a material alteration, and sufficient to constitute the offense of forgery.”
Now, we repeat, that while the cases last cited were predicated upon provisions of the statute unlike the one in the case at bar, yet applying the reasoning in those cases to the character of the instrument in the case now before us, it may well be said that if the instrument as set out in the indictment is an evidence of debt, it is a matter of little concern as to what you call that instrument — whether a certificate
That the deposit slip oí ticket as alleged in the indictment is an evidence of debt as contemplated by the provisions of the statute upon which this indictment is predicated, and is the subject of forgery, we have no doubt. In our opinion the provisions of this statute are broad enough to embrace every character of paper issued by the banks designated in the statute which furnish evidence to those persons dealing with the banks of the amount of any indebtedness due them. We are unwilling to say that the deposit slip or ticket alleged in 'the indictment, the issuance of which by the bank was but following one of the most common and usual methods of transacting business by the bank “with depositors, is not, in contemplation of that statute, evidence of debt. The ruling upon this proposition must be adverse to the contention of the learned counsel for appellant.
III.
It is next insisted that there is a fatal variance between the deposit slip or deposit ticket alleged in the indictment and the evidence offered in proof thereof by the State. It -is sufficient to say that the law applicable to this proposition is well settled. Section 2534, Revised Statutes 1899', provides that “whenever . . . there shall appear to be any variance between the statement in the indictment or information and the evidence offered in proof thereof ... in the name or description of any matter or thing whatsoever therein named or described, . . . such variance shall not be deemed' grounds for an acquittal of the defendant, unless the court before which the trial
In State v. Carragin, 210 Mo. 351, it was insisted that there was a fatal variance between the instrument described in the information and the note offered' in evidence. The information in that case did not allege and set out in its description of the forged instrument the indorsement of the defendant Carragin thereon, but the note offered in evidence had the indorsement of the defendant, the maker of the note, on it. It was expressly ruled in that case that the circuit court failing to find that there was any material variance, hence the omission in the information of the genuine indorsement of the defendant furnished no ground for the reversal of the judgment. It was also held in that case that the mere omission of the genuine indorsement of the defendant on the note did not constitute reversible error.
Numerous other cases by this court have made similar rulings, and in the comparatively recent case of State v. Sharpless, 212 Mo. l. c. 202, the rule as announced in the case of State v. Carragin, supra, was unqualifiedly approved.
IV.
This brings us to the consideration of the insistence on the part of counsel for appellant that the testimony as developed upon the trial of this case did not tend to prove that the deposit slip set out in the indictment was signed at all by any officer of the bank. We shall not undertake to reproduce all of the testimony applicable to this proposition, but it is sufficient to say that we have read in detail the evidence of the witnesses testifying as to the deposit slip and signatures as alleged in the indictment, and in our opinion the testimony very clearly tended to prove that the
This leads us to the consideration of the instructions given by the court. We have carefully analyzed such instructions and find that they fully covered every phase of this case to which the testimony was applicable. They required the jury to find every essential element necessary to constitute the offense with which the defendant was charged. The court by instruction numbered 3 fully informed the jury that the defendant was presumed to be innocent, and that it devolved upon the State to prove his guilt beyond a reasonable doubt, and unless the State established his guilt, as charged in the indictmnet, to their satisfaction beyond a reasonable doubt, they should give the defendant the benefit of such doubt and return a verdict of not guilty. In addition to this instruction the court, upon behalf of the defendant, repeated this information to the jury, and emphasized it by saying that it was not enough in a criminal case to justify a verdict of guilty that there may be a strong suspicion or even a strong probability of the guilt of defendant, but the law requires proof so clear and satisfactory as to leave no reasonable doubt of defendant’s guilt.
Complaint is particularly made of instruction numbered 4. This instruction was as follows: “The jury are instructed that it is not necessary to prove that defendant is guilty by the testimony of witnesses who may have seen the offense committed. His guilt may be shown by proof of facts and circumstances from which it may be reasonably and satisfactorily inferred.” While perhaps it may be said that it would have been more appropriate to have followed approved precedents respecting instructions upon this subject, yet manifestly there was no reversible error in the giving of that instruction, particularly so when taken in connection with the clear instructions of the court as
Complaint is made by the defendant upon the action of the court in refusing instructions requested by the defendant, marked A, B, C, D and E. We deem it unnecessary to reproduce those instructions. They have been, carefully analyzed and considered. In our opinion they are fully covered by the instructions given by the court at the request of counsel for the State and those given at the request of the defendant. We repeat, the instructions as given fully covered every subject connected with the offense charged to which the testimony was applicable. There was no such substantial error in the giving or refusing of instructions as was sufficient to authorize this court in reversing this judgment.
71.
We have fully indicated our views upon the controlling legal propositions disclosed by the record. The testimony developed upon the trial is fully indicated in the statement of this cause. It was fully sufficient to support the verdict as returned by the jury. The defendant, at the close of the State’s evidence, declined to introduce any evidence whatever; he was content with relying upon the insufficiency of the State’s showing made upon the trial. There was no effort on the part of the defendant to introduce '.any witnesses whose testimony would in any way tend to support the claim that $11,000 in currency and $8,000 in gold, as indicated by the deposit slip, had been deposited in the Cameron Bank. The evidence as introduced by the State clearly furnished such a substantial showing as authorized a submission of the cause to the jury, and while as provided by statute, no improper inference should be drawn as to the guilt of the defendant by reason of his failure to testify,
Finding no reversible error, the judgment of the trial court should be affirmed, and it is so ordered.