| Mo. | May 17, 1898
The defendantis a negro. He was in the employ of Dr. Cutler as house servant. Uttering a forged check is the rock upon which he split, or at least it is that on which this prosecution is based. The jury found him guilty under the second count, assessing punishment at five years in the penitentiary.
The second count referred to is the following: “And the grand jurors aforesaid, on their oaths aforesaid, do further say and present that the said Jake Samuels, at the county of Boone and State of Missouri, on the - day of May, 1897, a certain false, forged and counterfeit check, purporting to be made by Geo. W. Cutler, and purporting to be drawn on the Boone County National Bank of Columbia, Mo., a
“ ‘Columbia, Mo., May 28, 1897.
“ ‘Boone County National Bank of Columbia:
“ ‘Pay to Jake Samuels, or bearer, Two & 50 Dollars. Q-eo. W. Cutlee.
“ ‘$Two. 50.
“Feloniously did pass, utter and publish, as true and genuine, to one Walter Robinson with intent him, the said Walter Robinson, then and there and thereby, feloniously to injure and defraud, he, the said Jake Samuels, then and there well knowing the said check to be false, forged and counterfeit, against the peace and dignity of the State. J. H. Mueey,
“Prosecuting Attorney.”
This prosecution is bottomed on section 3646, Revised Statutes 1889.
1. No fault is seen in the form of the indictment, and this assignment of error is ruled against defendant’s contention.
2. But error was committed in several respects which will now receive attention:
Inasmuch as the second count aforesaid charged that the order was uttered “to one Walter Robinson with intent him, the said Walter Robinson, then and thereby, feloniously to injure and defraud,” it was necessary to prove the charge as laid. It is elementary law that the evidence must correspond wjth the allegations and be confined to the point in issue. 1 Greenl. Ev. [15 Ed.], sec. 51. It is true our statute (sec. 3983, R. S. 1889) prescribes that “it shall be sufficient in any indictment for any offense where an intent to injure, cheat or defraud shall be necessary to constitute the offense, to allege that the defendant did- the act with such intent, without alleging the intent of the
In Commonwealth v. Harley, 7 Met. 506, when the statute, like our own, provided that it should be sufficient to allege an intent to defraud, without naming the particular person to be defrauded, that the government having elected to set forth in the indictment a special intent to defraud one Marsh as the object of the conspirators, that allegation was a material one, and was bound to be established by proof. But that such allegation could not be established by proof that defendants conspired and agreed together to cheat the public generally, or any individual whom they might be able to defraud, and that an instruction to the effect that such evidence was sufficient for the purpose indicated, constituted reversible error. In State v. Copp, 15 N. H. 212, the indictment charged the defendant with resisting a deputy sheriff in the discharge of his duty, an averment that the sheriff was “legally appointed and duly qualified,” having been needlessly injected into the indictment was held to be descriptive and consequently must be proved. In Commonwealth v. Luscomb, 130 Mass. 42" court="Mass." date_filed="1880-11-30" href="https://app.midpage.ai/document/commonwealth-v-luscomb-6420116?utm_source=webapp" opinion_id="6420116">130 Mass. 42, the indictment charged the defendant with having in his possession, with intent to sell, “one pint of adulterated milk, to which milk water had been added,” it was held that the government must prove that water had been added to milk already adulterated, and that proof of the addition of water only to the milk would not support the indictment. An indictment for stopping the mail unnecessarily alleged a contract between the postmaster-general and the mail carrier, was held not to be supported without proof of such contract. U. S. v. Porter, 3 Day, 283" court="None" date_filed="1808-07-01" href="https://app.midpage.ai/document/united-states-v-porter-8639343?utm_source=webapp" opinion_id="8639343">3 Day, 283.
And though mere surplusage may be rejected,
The rule is that if after rejecting the redundant allegations enough be left to constitute the offense charged, that this suffices, provided that which is alleged, but not proved, be neither essential to the charge nor describe or limit that which is essential. 1 Chit., Crim. Law, 250; State v. Meyers, 99 Mo. 107" court="Mo." date_filed="1889-10-05" href="https://app.midpage.ai/document/state-v-meyers-3522863?utm_source=webapp" opinion_id="3522863">99 Mo. 107.
Under these authorities it is quite clear that nothing contained in the charging part of 'the present indictment can be rejected as surplusage. In this indictment the charge is of a specific intent to defraud, which, of course, can not be supported by proof of a general intent to defraud.
3. Consequent to the foregoing observations, the second instruction given on behalf of the State, to the effect that defendant could be found guilty on proof of a general intent to defraud, was erroneous.
4. In this case, as already noted, the charge was of an intent to defraud Walter Robinson. It seems that there was a firm doing business at the mercantile establishment where the check in question was uttered of the name and style of Baker, Robinson & Company, and it seems that Baker, Robinson and Schaefer composed that firm; but there is nothing definite in the record on either of these points. Nor does it appear whether the Walter Robinson mentioned in the indictment was a member of that firm or not, or whether he
These remarks are made tentatively in order that evidence appropriate under this head may be properly developed at the new trial of this cause, and, if need be, that a new indictment be found.
Therefore judgment reversed and cause remanded.