219 Mo. 721 | Mo. | 1909
This is an appeal from a judgment and sentence of the circuit court of Howell county.
On the 31st of July, 1907, the prosecuting attorney of Howell county filed in the circuit court of said county an amended information in three counts charging the defendant in the first count with having made and altered a certain check on the 31st day of May, 1907, under the name of F. M. "Willard, payable to one Hamon Judd, on the First National Bank of West Plains, Missouri, for the sum of twenty dollars, dated May 29, 1907. The second count charged the defendant with having sold, exchanged and delivered said forged and altered check to said bank, and the third count charged him with having made, altered and forged said check by which a pecuniary demand and obligation was purported to be created. The defendant was tried at the December term of the Howell Circuit Court, and found guilty under the first count of said information, and his punishment assessed at five years imprisonment in the State penitentiary. After unsuccessful motions for new trial and in arrest of judgment, he appealed to this court.
The first count of the information is in these words:
“J. L. Bess, prosecuting attorney within and for the county of Howell, in the State of Missouri, for his*724 amended information, informs the court that one James R. Willard, on the 31st day of May, A. D. 1907, at the said county of Howell, did then and there willfully and unlawfully forge, counterfeit and falsely make and alter a certain check purporting to he made by one F. M. Willard, under the name of F. M. Willard, on the First National Bank of West Plains, a corporation duly incorporated and existing under the laws of the United States, payable to one Hamon Judd, or bearer, for twenty dollars, and dated May 29, 1907; which said false, forged, counterfeit and altered check of the tenor following;
FIRST NATIONAL BANK,
No.-. West Plains, Mo., May 29, 1907.
Pay to Hamon Judd, or bearer, twenty dollars ($20.00)
F. M. WrLLAKD.
With intent'then and there, feloniously to injure and defraud, against the peace and dignity of the State.”
As the court submitted the case to the jury on the first count only, it is not necessary to notice the other two counts. In his motion for a new trial and in arrest of judgment, the defendant challenged the sufficiency of the first count in the information, on the ground that he was not charged with having “ feloniously” forged and falsely made said check, and this presents the one important question in this case. In State v. Murdock, 9 Mo. l. c. 740, Judge Scott, speaking for this court, said: “Every offense, which is made a felony by statute, must be charged to have been done feloniously, whether it was a felony by common law or not. The word ‘feloniously’ is indispensably necessary in all indictments for felony, whether statutory or by common law. ’ ’ In State v. Deffenbacher, 51 Mo. 26, it is said: “The term ‘felony,’ when used in the statute, is ‘construed to mean any offense for which the offender, on conviction, shall be liable, by law, to
In onr opinion this count of tlie information upon which the defendant.was convicted is fatally defective, and tlie circuit court erred in overruling the motion in arrest of judgment. Indeed, in the absence of such a motion under the well established practice of this court, we are bound to look to the indictment, and if found fatally defective, reverse the judgment. The judgment of the circuit court of Howell county is reversed and the cause remanded, and in the meantime the prisoner will be remanded to jail, or if on bail, held to answer another indictment or information if the prosecuting attorney shall elect to further prosecute.
The judgment is reversed and the cause remanded to be proceeded with as herein directed.