209 Mo. 264 | Mo. | 1908
This, cause is brought to this court by appeal on the part of the defendant from a judgment of the circuit court of Franklin county convicting him of the offense of forgery in the fourth degree, for selling, exchanging and delivering a falsely made, forged and counterfeit note for $200:
On the 8th day of January, 1907, the prosecuting attorney of Franklin county filed an amended information, in two counts. The first count charged the defendant with having in his possession a certain falsely made, altered, forged and counterfeit note for $200 on the Bank of Sullivan in Franklin county. The second count of the information alleged that “Ciar
“ ‘No. — $200.00. Sullivan, Mo., Sept. 26, 1906.
“ ‘Three months after date we, each as principal, promise to pay to the Bank of Sullivan or order in Sullivan, Mo., two hundred and No-100 dollars. For value received, negotiable and payable without defalcation or discount, with eight per cent interest per annum after maturity. The makers, sureties, indorsers, and guarantors of this.note severally waive presentment for payment, notice of non-payment, protest, notice of protest, and diligence in bringing suit against any party thereto, and consent that the time of payment may be extended without notice thereof.
“ ‘Clarence Standford,
Carroll McCallister,
F. M. Bennett,
M. S. Crow/
‘ ‘ Knowing the same to be forged, counterfeit, and falsely made, with intent then and there and thereby unlawfully and feloniously to have the said falsely made, forged, and counterfeit instrument uttered and passed, against the peace and dignity of the State.”
The information was' accompanied by the affidavit of one L. A. Fisher. "Upon the date of the filing of the amended information the defendant was put upon
The State’s evidence tended to show that the Bank of Sullivan is situated in the town of Sullivan, Franklin county, Missouri. That defendant, from his home in Morrellton, Franklin county, communicated by telephone with Leo A. Fisher, president of the Bank of Sullivan, at his residence in Sullivan, said county, after supper on September 26, 1906-, in which communication defendant applied for a loan .of two hundred dollars from said bank. Mr. Fisher told the defendant that if he would give good security the bank would let him have the money. Defendant replied that Carroll McCallister, F. M. Bennett and M. S. Crow would sign the note as security, and Mr. Fisher told defendant he could have the loan upon the security offered. On the following day, by direction of Fisher, the cashier of the bank, H. O. Hollow, prepared the form of the note read in evidence and mailed the same, together with a letter addressed to Clarence Standifer at Morrellton, Mo. On October 4, 1906, defendant called at the bank and asked the cashier to change the time of
Defendant’s evidence tended to show that he was twenty-three years of age, was in poor health and en
At the close of State’s evidence defendant asked an instruction in the nature of a demurrer to the evidence, which was by the court overruled, to which the defendant excepted.
The cause being submitted to the jury upon the evidence and instructions of the court they returned a verdict finding the defendant guilty as charged in the second count of the information and assessed his punishment at three years’ imprisonment in the penitentiary. Timely motions for new trial and in arrest of judgment were filed, and by the court overruled. Sentence and judgment were entered of record in conformity to the verdict, and from this judgment the defendant prosecutes his appeal, and the record is now before us for review.
OPINION.
The record in this cause discloses many complaints by the defendant of error as a basis for the reversal of this judgment. We will treat of the assignments of error by learned counsel for appellant in the order in which they are suggested in the brief.
I.
It is insisted that the trial court committed error in permitting the prosecuting attorney to amend the information in matter of substance on the trial. The record discloses that the trial proceeding, upon the introduction of testimony by the State the defendant objected to the introduction of any testimony on the ground that neither the first nor the second count of said information stated facts sufficient to constitute any offense. This objection being made, the prosecuting attorney, by leave of court, amended the second count of the information by inserting therein the three
This count of the information upon which the defendant was tried is predicated upon the provisions of section 2013, Eevised Statutes 1899. This section provides : ‘ ‘ Every person who shall sell, exchange or deliver, or offer to sell, exchange or deliver, for any consideration, any falsely altered, forged or counterfeited instrument of writing, the forgery of which is declared punishable, except as in the last section is excepted, knowing the same to be forged, counterfeited or falsely altered, with the intention to have the same uttered or passed, shall, upon conviction, be adjudged guilty of forgery in the fourth degree.”
It is insisted by appellant that it was essential to the validity of the information to amend it by the insertion of the words heretofore indicated, therefore it is argued the amendment is one of substance, and that such amendment being made after the commencement of the trial, was not authorized by section 2481, Eevised Statutes of 1899, which substantially provides that informations may be amended as to form and substance prior to the trial and may be amended as to form and variance after the commencement of the trial.
At the veiy inception of the consideration of the propositions involved in this case we find that the facts upon which this information is predicated do not constitute the offense charged and have no application to the offense defined by section 2013, Eevised Statutes of 1899. "VYe fully treat of that proposition in paragraph two of this opinion.
Eecurring to the question suggested by counsel for appellant as to the amendment of the information
It has been repeatedly held by this court that in charging an offense it is not absolutely essential to use the exact words of the statute. If words of equivalent import are employed it is a substantial compliance with the requirements of the law in charging the offense condemned by the statute. [State v. Ware, 62 Mo. 597.]
In State v. Watson, 65 Mo. 115, in discussing a proposition as to whether or not a charge of forgery would fall within the provisions of a certain section of the statute, which statute used the words respecting such forgery, as “pass, utter and publish,” but instead of using the words of the statute the terms, “sell,” “exchange” and “deliver” were used, this court, speaking through Judge Henry, said: “It is generally, not, however, invariably, sufficient to describe the offense in the words of the statute; but it does not follow that other words may not be substituted. Selling, exchanging or delivering a bank bill or a piece of money is in common parlance passing the bill or money. The plain or ordinary and usual sense of the word ‘pass,’ as applied to coin or bank notes, is to deliver in exchange for something else, and is equally expressed by the words ‘sell,’ ‘exchange’ or ‘deliver.’ ”
So it may be said in the case at bar, that thq allegations in the information which charge a sale, ex
Our attention upon this proposition is directed to the case of State v. Hesseltine, 130 Mo. 468, and it is earnestly insisted by counsel for appellant that the announcement of the rule in that case is decisive of the proposition now under consideration. The learned judge writing the opinion in that case, which was one of forgery, in discussing the application of the charge to section 3634, Revised Statutes 1889, which is substantially .the same as section 2002, Revised Statutes 1899, said that, “if framed under section 3634, the count is bad because it does not allege that the sale was for a consideration, and then specify such consideration, as it should do.” It is sufficient to say of that statement of the law that, as an abstract rule of pleading, applicable to the offense defined by the section then under consideration, the announcement of the rule was clearly correct. The conclusion we have reached, as heretofore indicated, upon the proposition in the case at bar, by no means should he understood as holding that it was not essential to allege that the sale was for a consideration, and that such consideration should be specified; but we do mean to say that it is not essential to the validity of a charge, under the provisions of the section now being discussed, to use the term “consideration.” We simply hold, in harmony with the repeated rulings of this court,, that if the language used in making the allegation is equivalent to the words used in the statute, and when used in making the charge in an information it makes it manifest upon the face of the charge that the sale and delivery was for a consideration, the law respecting good pleading has been fully complied with.
II.
The fundamental error to which counsel for appellant directs our attention in this proceeding, is that upon the disclosures of the record the court erroneously held that a conviction of the defendant could be had and maintained upon a charge predicated upon the provisions of section 2013.
It will be observed that the defendant in this cause obtained the money from the Bank of Sullivan by presenting to said bank a promissory note for the sum of $200, payable to the Bank of Sullivan, the same bank from which the money was obtained, purporting to
If the defendant falsely made, altered or forged the promissory note alleged in the second count of the information, then it is clearly manifest that the offense of which he is guilty is defined' by the provisions of section 2000,• which provides that ‘ ‘ every person who, with intent to injure or defraud, shall falsely make, alter, forge or counterfeit any instrument or writing,
Emphasizing the correctness of the conclusion upon this proposition, as heretofore indicated, we direct attention to the case of State v. Webster, 152 Mo. 87. That case was decided by Judge Gantt at the October term, 18-99', of this court. An examination of it will clearly indicate a state of facts which point out clearly the class of offenses sought to be covered by the provisions of section 2013. The indictment in that case* was under the' provisions of section 3645', Revised Statutes 1889, the provisions of which are substantially the same as section 2013, upon which the charge in the case at bar was predicated. In that case the defendant Webster was indicted for unlawfully and feloniously selling and delivering to Evingston & Company, a firm composed of Messrs. M. G. Evingston, E. K. Morgan and A. P. Young, a certain falsely made, forged and counterfeited check purporting to have been made and drawn by one Lige Garrison upon the Camden County Bank, a banking corporation duly organized and existing under the general laws of Missouri, in favor of one Cahley Parrick, which said check was of the tenor following:
“Linn Creek, Mo., Sept. 16, 1895.
“Camden County Bank,
“Pay to Cahley Parrick or order $128 (one hundred and twenty-eight dollars).
Lige Garrison.”
*278 “Knowing said check to be falsely made, forged and counterfeited with felonious intent, then and there to have the same passed, against the peace and dignity of the State.”
The defendant was tried and convicted upon that indictment and the judgment of conviction was affirmed. In that case we have a plain statement of a state of facts which clearly fall within the provisions' of section 2013, and it is that character and class of cases that is sought to be covered by the provisions of that section.
If in this case the facts disclosed had shown that the defendant had in his possession a promissory note for $200, purporting to have been executed by some other person to himself, or to some other individual, and such note had been altered or forged and he had knowledge of such alteration and forgery, and then he should have sold, exchanged or delivered that note to the bank for a consideration, with the intention to have the same uttered or passed, his offense would have clearly fallen within the provisions of section 2013; but that is not this case. We have here simply the presentation and delivery to the Bank of Sullivan of a promissory note, made payable to said bank, purporting to have been signed by the parties whose names are attached to it, for the purpose of securing a loan, and this state of facts by no means is within the purview of the provisions of section 2013, nor did the provisions of that section defining the offense therein embraced, have in contemplation that class or character of acts.
The facts as disclosed by the record upon the trial of this cause clearly indicate the guilt of the defendant of either forgery in the third degree under the provisions of section 200©, or forgery in the fourth degree under the provisions of section 2012. In fact, his guilt is practically admitted. It is therefore with great reluctance that we feel constrained to reverse thé judg
We have indicated our views upon the vital propositions disclosed by the record before us, which results in the conclusion that the judgment of conviction upon the charges predicated under the provisions of section 2013 is erroneous. The defendant cannot.be convicted under the provisions of that section.
The judgment of the trial court should be reversed, and for tlie purpose of giving the court an opportunity to make such orders touching a new charge as it may be authorized to make under the provisions of the statute-, this cause should be remanded. If the defendant has been tried and acquitted upon charges predicated upon all the provisions of the statute to which the facts of this case might be made applicable, then there is nothing left for the trial court to do except to- discharge him.