119 Mo. 421 | Mo. | 1894
This is an appeal from Jackson county. Defendant was indicted in the criminal court for forgery in the third degree, and convicted.
The jury by their verdict assessed his punishment at five years in the penitentiary, but the court reduced it to two years, under section 4233, Revised Statutes, 1889, and sentenced him accordingly. The errors assigned in this court are three and will be determined in the order of appellant’s brief.
I. The indictment charged forgery in the third degree, the evidence tended to prove that degree and no other, and the instructions were for that degree, but by some oversight or inadvertence of the court and prosecuting counsel, the jury were instructed that if they found defendant guilty, they would assess “his punishment at imprisonment in the penitentiary for not less than five nor more than ten years. ”
The punishment for forgery in the third degree by section 3656, Revised Statutes, 1889, is not less than tioo years and not exceeding seven years. It is clear that as to the punishment the instruction was erroneous, but as the court subsequently reduced it to the minimum punishment prescribed by the law, ought the case to be reversed?
Affixing a punishment, either by the court or jury, is necessarily dependent upon a finding of guilty of the offense charged. Until that is done none can,be inflicted. The instruction was correct as to all the essentials of forgery in the third degree. The jury found defendant guilty of that offense. The court had erroneously given them the privilege of assessing it from five to ten years, instead of two to seven. The jury placed it at five. The court reduced it to the lowest possible punishment, as soon as its attention was called to the error. How was defendant injured? Concede the jury would have
Had the trial court not interfered and given defendant the benefit of the lowest punishment prescribed, we think it would have constituted error, as was held in State v. Sands, 77 Mo. 118; State v. McNally, 87 Mo. 658, and People v. Watson, 25 N. E. Rep. 567; but as he was found guilty of the offense with which he was charged, and by the judgment of the court was given the lowest punishment prescribed, he was not harmed b.y the error. It certainly cannot be maintained that the jury would find him guilty of an offense for which the minimum punishment was five years on less evidence than if the minimum penalty was two years. The error was not prejudicial. State v. Wheeler, 108 Mo. 664; State v. Snyder, 98 Mo. 555.
II. It is next insisted that the court erred in excluding evidence offered by defendant as to the relative property interests of defendant and his mother in the farm on which she resided.
The defendant was charged with forging his mother’s name to a note as surety for himself. How the fact that his mother was only a life tenant and he entitled to one-half in fee, subject to her life estate, would tend to excuse him for forging her name and render it less a crime, is beyond our comprehension. The court clearly committed no error in declining to hear it.
III. There was no error in refusing the twelfth instruction prayed by defendant, inasmuch as the court modified it and gave it as so modified. As offered, it was not the law. The fact that one whose name had been forged may be willing to condone the offense' and even pay the obligation, does not render it less a crime
The record presents a sad phase of life; .that of a son charged with forging his mother’s name, and convicted by the evidence of his mother and his daughter; but finding no error in the record, the judgment must be affirmed.