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this suit expended, and that execution hereof, within a year and a day from the date of the issue therefor.

wounding. This point is ruled against de"Afterwards, on the same day comes the defendant, as the allegation in the information fendant, by his attorney, and files berein his is sufficient to show that the defendant died motion praying the court to set aside its judg- within that time. ment in the above cause and grant him a new

[3] II. We cannot consider the purported trial, and the court having seen, heard, and ful

hill of ly understood said motion and having been fully

xceptions, because, by a reference to advised in the premises doth overrule same. the above statement of facts and the record At the same day comes the defendant herein, herein, it may be ascertained that the moby his attorney, and files herein his motion, tions for a new trial and in arrest of judg. praying the court to arrest and set aside its ment, while filed on the same day that judgjudgment, cause shown, and the court, having ment was entered and sentence pronounced, seen, heard, and fully understood said motion, were not filed until afterwards, and thereand having been fully advised in the premises, fore, in contemplation of law, were not filed. doth overrule same."

The record shows that on September 16, 1921,

the court informed defendant that he had Opinion.

been found guilty of murder in the first de Defendant challenges the sufficiency of the gree by a jury, and punishment assessed at information because (1) it charges no of- imprisonment in the state penitentiary for fense under the laws of the state of Mis- the term of his natural life; and being asked souri; (2) it is vague, indefinite, and so dis- by the court if he had any legal cause to connected that it does not legally inform the show why judgment should not be pronouncdefendant of the accusations against him; ed agaiņst him according to law, and still (3) the word "with” is omitted.

failing to show cause, the court entered the [1] The third, which probably includes the judgment and sentenced him. Afterwards second challenge, is directed to that part of the motions for a new trial and in arrest of the information as follows:

Dia judgment were filed. Section 1079, R. S. make an assault and a dangerous and dead- Mo. 1919, is as follows: ly weapon, to wit.

It is the con "Sec. 4079. The motion for a new trial shall tention of defendant that the information be in writing, and must set forth the grounds or should read “did make an assault with a causes therefor, and be filed before judgment,” dangerous and deadly weapon.” Construing etc. the information, we do not find it to be vague,

The statute has been construed in some indefinite, or disconnected, or that the word "with” was omitted. That part of the infor- few cases. State v. Pritchett, 219 Mo. 696, mation under consideration states "upon one 119 S. W. 386; State v. Fraser, 220 Mo. 34, James A. Crabtree

did make an 119 S. W. 389; State v. Currier, 225 Mo. assault and a dangerous and deadly weapon, 642, 125 S. W. 461; State v. Dunnegan, 258 'to wit, a pistol

then and there Mo. 373, 167 S. W. 497; State v. Riley, 228 loaded which they

in Mo. 431, 128 S. W. 731; State v. Sparks, 263 their hands then and there had and held, at Mo. 609, 173 S. W. 1057; State v. Nistendirk and against him * * did shoot off and (Mo. App.) 204 S. W. 1111; State v. Briscoe, discharge,” etc. The information charges in 237 Mo. 154, 135 S. W. 58, 140 S. W. 885; transposed and rounded English: "That State v. Thomas, 232 Mo. 216, 134 S. W. 571. Stanley Baird and Gip Webster, upon one

In State v. Sparks, the court says: James A. Crabtree, did make an assault and “When the record, as in this case, shows that did shoot off and discharge a dangerous and the sentence was pronounced and judgment endeadly weapon, to wit, a pistol, then and tered before the motion for a new trial was filed there loaded, at and against him, which it will be presumed, in the absence of a conthey, then and there had and held in their trary showing, that the trial court was informed hands." Reading it thus: "It is coherent, by the defendant that he did not desire to be sensible and definite and fully informs the heard on a motion for new trial. If defendant defendant of the charge against him.” We had moved the trial court to grant him time

to file a motion for new trial before entering have considered the case of State v. Rector, judgment, and that request had been denied, 126 Mo. 328, 23 S. W. 1074, and do not con- then such ruling denying time to file a motion sider it in point.

for new trial as well as the evidence introduced [2] Defendant also contends that the words upon such motion, would become a proper matin the information “of mortal wound afore- ter of exception. State v. Carson, 231 Mo. 1. said died,” should read “of the mortal wound It may sometimes occur that clerks will write aforesaid then and there died.” The evi- up judgments against defendants before any dence considered, the latter statement would judgment has been actually pronounced by the not have been true, for the information and court; in all such cases it becomes the duty of evidence show that the deceased died of his defendant to move the court to vacate or ex.

punge from its records such premature or upmortabwound on the 11th day of March, 1921, authorized judgment before filing his motion two days after the assault. The probable for new trial. Otherwise, the judgment must office of the allegation of the date of the stand as an absolute bar to the consideration

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(248 S.W.) In State v. Pritchett, 219 Mo. 696, loc. cit., such election was subsequently made on a mo704. 119 S. W. 386 et seq., the defendant was tion after the evidence was introduced. convicted of murder in the second degree, 2. Indictment and information 125(3)and the court asked him if he had any legal Statute forbidding possession of forged in. cause to show why judgment should not be

strument with intent to defraud by utterance pronounced against him, according to law, inapplicable to information charging forgery and the defendant failing to show such cause, and uttering and selling note. judgment and sentence were passed upon him Rev. St. 1919, $ 3439, defining the offense in accordance with the verdict of the jury. of having in possession à forged instrument Thereafter and upon the same day, the de with intent to defraud by uttering the same, fendant filed his motion to set aside the held not applicable to an information charging verdict and for a new trial, which was over

in one count the forgery of a note and in anruled by the court and exception duly saved. other the uttering and selling of the note. Held, that, under our statute, the motions 3. Indictment and information om 125(3)-Inshould be filed before judgment. In view of formation charging in one count the uttering the above statute and the authorities, the and selling of a forged note held bad for dumotions were not, in contemplation of law, plicity. filed.

Where an information in the same count [4) III. The applications for a change of charged the uttering and selling of a forged venue and for a continuance, are matters of note, the count described two offenses, that unexception, and, in order for an appellate der Rev. St. 1919, § 3140, making the selling

a forged instrument to have the same passed court to review them, must be incorporated forgery in the fourth degree, and that under in the bill of exception. State v. Baugh (Mo. section 3441, making the uttering of a forged Sup.) 217 S. W. 277, loc. cit. 280, and cases instrument an offense punishable as forgery in cited; State v. Ware, 69 Mo. 332.

the third degree, in view of section 3436, and [5] It was stated by Judge Railey in State was therefore bad for duplicity; the punishex rel. Dolman v. Dickey, 288 Mo. 92, 231 s. ment for each of the two degrees being differW. 582, loc. cit. 584, referring to cases cited ent under section 3451. therein, that, it has long since become ele

4. Indictment and information Om 125(1)-Dementary law that, in the absence of a motion

fondant cannot be convicted of two different for a new trial and in arrest of judgment,

crimes at the same trial. nothing but the record proper can be con

A defendant cannot be tried and convicted sidered by the appellate court.

of two different crimes at one and the same In that the motion for a new trial and in trial. arrest of judgment were not filed in contemplation of law, we may not review any mat- 5. Indictment and information om 132 (2)-Re

fusal to require election between forgery in ter of error found in the purported bill of third and fourth degrees, charged in same exception, if such there be.

count, held error, We therefore affirm the judgment.

Where an information charged in the same

count the crime of uttering a forged note, which RAILEY and HIGBEE, CC., concur.

was forgery in the third degree, and with selling the forged note, which was forgery in the

fourth degree, and was therefore duplicitous, PER CURIAM. The foregoing opinion of it was error to refuse to require an election DAVIS, C., is adopted as the opinion of the between the offenses, each of which carried a court.

different punishinent, and required different All of the Judges concur.

proof from that required in the other, both as
to acts perpetrated and as to intent.
6. Forgery Cm 34(7)-No variance between

proof and information setting out forged note
according to “tenor" and also unnecessarily
alleging its "purport."

In a prosecution for uttering and selling a STATE V. COLLINS. (No. 23824.)

forged note, the fact that the information al

leged that the note was an obligation to pay (Supreme Court of Missouri, Division No. 2. $500 “90 days after the said 16th day of SepFeb. 23, 1923.)

tember, 1920," where the proof showed that

the note stated no time for payment, held not h. Indictment and

information om 132(5)--a fatal variance, where the note was set out in Election between counts, sufficient before evi- the information according to its tenor; the aldence introduced, held unnecessary.

legation as to purport being mere surplusage, Where an information for forgery was in the "tenor” of an instrument being an exact two counts, one charging forgery of a note and copy, and the “purport” being the legal effect the other uttering and selling the note, it was of the instrument. not error to overrule a motion, filed before evi [Ed. Note.-For other definitions, see Words dence was introduced, requiring the state to and Phrases, First and Second Series, Purport; elect on which count 'it would proceed, where Tenor.]

PmFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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Appeal from Circuit Court, Pike County; , ceed to trial. This motion was overruled. Edgar B. Woolfolk, Judge.

At the close of the evidence offered by the

state, the defendant again filed a motion Lulu M. Collins was convicted of forgery asking the court to require the state to elect in the third degree, and she appeals. Re- upon which count it would stand, and the versed and remanded.

state elected to stand on the second count. C. E. Cowherd, of Louisiana, Mo., and J. The defendant then moved the court to reH. Haley, of Bowling Green, for appellant. quire the state to elect upon which of the

Jesse W. Barrett, Atty. Gen., and J. Henry two offenses charged in the second count it Caruthers, Asst. Atty. Gen., for the State.

would proceed to trial. The court overruled this motion, stating that the second count

charged only one offense. These several rulWHITE, J. On the 20th day of January, ings of the court are assigned as errors. 1922, in the circuit court of Pike county, the appellant was found guilty of forgery in the motion filed before evidence was introduced.

[1] There was no error in overruling the third degree, and her punishment assessed at the election between the two counts was enthree years imprisonment in the peniten- tirely sufficient after the evidence was intiary.

troduced. It is unnecessary to elucidate the Miss Collins, for many years a teacher, doctrine upon which that ruling is held to be was at one time president of Pike College, correct, further than to cite cases in its supin Bowling Green. Subsequently she was ad

port. State v. Daubert, 42 Mo. 242; State v. mitted to the bar, and was a practicing at. Young, 266 Mo, loc. cit. 732, 183 S. W. 305; torney at the time the information in this state v. Christian, 253 Mo, loc. cit. 393, 394, case was lodged against her, March 26, 1921.

161.S. W. 736. In the month of September, 1920, she under

II. A different question arises in detertook to negotiate a loan for one Mrs. Ida Burrus. She produced a mortgage and a mining the propriety of the ruling in regard note for $500, with the signatures of Daniel to the different causes of action stated in Grimes, a colored man, and Sarah Smith, his the second count. Three questions present

(a) Did the second sister, whose name was Randall at the time themselves for solution: of the trial. The defendant told Mrs. Bur- count state two causes of action? (b) Was rus that she was attorney for Daniel Grimes, the motion to elect the defendant's proper She had in fact represented Daniel Grimes method to reach that infirmity? and (c) Was in some business. She had instituted in the the defendant harmed by the ruling of the

court? circuit court a suit for him affecting the title

The second count is as follows: to 40 acres of land in which his sister, Sarah Smith, was interested. That suit was pend

“Second Count. And the said Rufus L. Higing at the time of the trial,

ginbotham, prosecuting attorney within and for The name of the payee was not written in the county of Pike, in the state of Missouri, unthe note. Miss Collins inserted the name of der his oath of office and upon his information, Mrs. Burrus, and told Mrs. Burrus that knowledge, and belief, files this his second Grimes had authorized her to insert the count, and charges the facts to be that at the

county of Pike, in the state of Missouri, on or Mrs. Burrus took the note, and at about the 16th day of September, A. D. 1920, that time gave Miss Collins a check for $300, one Lulu M. Collins did then and there unlawand later she gave her a check for $100. fully, willfully, fraudulently, and feloniously Miss Collins made some statement about sell, utter, pass, exchange, and deliver to one Grimes desiring the money to purchase 40 Mrs. Ida Burrus, for a consideration, a certain acres of land, and represented that he had forged, counterfeited, and falsely made instru

ment in writing, to wit, a promissory note, certain hogs and cows, and had plenty of purporting to be the act of, and purporting to property, and stood well in the community. have been made and signed by, one Sarah The note was not paid at the expiration of Smith and one Daniel Grimes, by which a pe90 days, when Mrs. Burrus thought it was cuniary demand and obligation for the payment due, and after several attempts to collect it of five hundred dollars ($500.00), by said she went to see Grimes and his sister. They Sarah Smith and the said Daniel Grimes, to the testified at the trial that they never execut-order of one Mrs. Ida Burrus, ninety days ed the note. There was other evidence in- after said 16th day of September, 1920, purtroduced, but the above is sufficient to show ported to be created, which said forged, coun

terfeited, and falsely made instrument and the general trend and effect of the facts tes promissory note is of the tenor following, that tified to.

is to say: I. The information was in two counts.

**$500.00

September 16, 1920. The first count charged forgery of the Grimes note, and the second the uttering and to the order of Mrs. Ida Burrus five hundred

'Ninety after date we promise to pay selling of that note. The defendant, at the dollars, for value received, negotiable and pay. beginning of the case, before evidence was able without defalcation or discount, and with introduced, filed a motion to require the interest from date at the rate of 8 per cent.

name.

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(248 S.W.) Dually to become as principal and bear the same passed.” Section 3441 declares that any perrate of interest.

Sarah Smith.

son who, "with intent to defraud, shall pass, his “ 'Daniel X Grimes. utter or publish

as true" any mark

forged instrument, “knowing such instruWitness: F. A. Davis.

ment
to be

forged” ""[U. S. Documentary 2 Cents.] shall be guilty of forgery in the same de'No.

gree as hereinbefore declared for "forging, 19–16–1920.

R

altering or counterfeiting the instrument." “ 'LMC

Every element of the offense condemned in -unlawfully, willfully, fraudulently, and feloni- each section is alleged in the information; ously did sell, utter, pass, exchange, and deliver the defendant is charged in one count with and publish as true, to one Mrs. Ida Burrus, violating both. Those sections condemn sellfor a consideration, with the intent then and ing and uttering forged instruments. The there to have the same passed, and with the intent then and there and thereby her, the said instrument described here is covered by secMrs. Ida Burrus, to injure, cheat, and defraud, tion 3436, which says the forgery of any inand she, the said Lulu M. Collins, then and strument in writing whereby a pecuniary dethere well knowing the said instrument and mand is created, and which is not hereinbenote to be forged, counterfeited and falsely fore declared to be forgery in some other made; and against the peace and dignity of degree,” is declared to be forgery in the the state. Rufus L. Higginbotham,

third degree. The sections prior to that re“Prosecuting Attorney within and for late to particular classes and kinds of inthe County of Pike, Missouri."

struments ; section 3436, being general in [2] Counsel for appellants in their argu- its statement, relates to the forgery of an inments and brief say that this count charges strument like the note here. three offenses: One under section 3439, one [3] Sections 3440 and 3441 describe two under section 3440, and one under section separate and distinct offenses with relation 3441, R. S. 1919. There is no trouble in to that kind of a forged instrument. Secdetermining that section 3439 cannot be ap- tion 3440 is directed against the selling or plied to any of the allegations of the infor- delivering for a consideration of such inmation, because that section defines the of- strument with intention to have the same fense of having in possession a forged instru- uttered or passed, while section 3441 is diment with intent to defraud by uttering the rected against passing, uttering, or publishsame.

ing as true the instrument with intent to Sections 3440 and 3441, for convenience, defraud with knowledge that it was forged. we copy as follows:

It is not for us to question the wisdom of the “Sec. 3440. Selling Forged Instrument to Legislature in creating such fine distinctions. Have the Same Passed, Fourth Degree.-Every Several elements of each offense are not deperson wbo shall sell, exchange or deliver, or scribed in the section defining the other. The offer to sell, exchange or deliver, for any con- offense under section 3440 is forgery in the sideration, any falsely altered, forged or coun- fourth degree. The offense under section terfeited instrument or writing, the forgery 3441 is the same as that in section 3436, forof which is declared punishable, except as in the last section is excepted, knowing the same

gery in the third degree. The punishment to be forged, counterfeited or falsely altered, for each of the two degrees of that offense with the intention to have the same uttered was different. Section 3451, R, S. 1919. The or passed, shall, upon conviction, be adjudged appellant is correct in saying that the second guilty of forgery in the fourth degree."

count describes two offenses and is bad for "Sec. 3441. Uttering Forged Instrument.-- duplicity. 22 Cyc. p. 377; State v. Huffman, Every person who, with intent to defraud, shali | 136 Mo. 65, 37 S. W. 797. pass, utter or publish, or offer or attempt to

[4] A defendant cannot be tried and conpass, utter or publish as true any forged, coun-victed of two different crimes at one and the terfeited or falsely altered instrument or writing, or any counterfeit or any imitation of any

same trial. State v. Pace, 269 Mo. loc. cit. 687, gold or silver coin, the altering, forging or 192 S. W. 428; State v. Carragin, 210 Mo. loc. counterfeiting of which is hereinbefore declared cit. 371, 109 S. W.553, 16 L. R, A. (N. S.) 561. to be an offense, knowing such instrument, A motion to quash or a demurrer would propwriting or coin to be altered, forged or coun-erly have been sustained to the indictment. terfeited, shall, upon conviction, be adjudged It has been held by this court in the case of guilty of forgery in the same degree as herein. State v. Armstrong, 106 Mo. loc. cit. 413, 16 before declared for the forging, altering or

S. W. 604, 13 L. R. A. 419, 27 Am. St. Rep. counterfeiting the instrument, writing or coin

361, that a defendant may attack an inforso passed, uttered or published, or offered or attempted to be passed, uttered or published.” mation or indictment for duplicity by motion

to quash, demurrer, or motion to compel the Section 3440 declares that it is forgery in state to elect. Other later cases indicate that the fourth degree "to sell, exchange or de-a motion to elect is a proper method to purliver, for any consideration" any forged sue. State V. Nieuhaus, 217 Mo. loc. cit. writing (with certain exceptions) "with the 345, 117 S. W. 73; State v. Davis, 237 Mo. intention to have the

uttered or loc. cit. 240, 140 S. W. 902. Where no objec

+

same

tion is made to the information on account, formation sets forth the purport and also of duplicity, will be cured by the verdict. the tenor of the instrument. In the case of State v. Flynn, 258 Mo. loc. cit. 220, 167 S. State v. Yerger, 86 Mo. 33, loc. cit. 37, it was W. 516; State v, Miller, 255 Mo. loc. cit. 230, said: 164 S. W. 482. The further question arises: Was the de- sufficiently gives the purport, then the pur

"When the tenor is exact and complete, and fendant injured by failure of the court to porting clause may be rejected as surplusage"sustain the motion to elect? This court citing Wharton's Criminal Law. quoted from Bishop on Criminal Procedure in the case of State v. Fox, 148 Mo. loc. cit.

The purport of the instrument necessarily 525, 50 S. W. 98, to the effect that the fail appears when the instrument is set forth acure to require an election is an inconvenience cording to its tenor. In the case of State to which it puts the defendant in making his v. Bibb, 68 Mo. 286, where the variance was defense. A passage from 22 Cyc. p. 404, is between the name of the party alleged to very similar in effect.

have been signed to the note and the name [5] The defendant was charged with for- signed to the instrument, which was set out gery in the third degree and in the fourth in hæc verba, this court said (68 Mo. loc.

offense degree. Each

required

cit. 288):

different proof from that required in the other, both “There is no question of variance, as there as to acts perpetrated and the intent of the might have been, if the receipt had not been defendant. The defendant was in no way fully set out in the indictment.” relieved of the embarrassment of attempting

That case was cited with approval by the to meet the charge of two offenses at the same Supreme Court of Indiana in the case of time. We hold, therefore, that the refusal Myers v. State, 101 Ind. 379. That was a of the court to require an election was error

case where the tenor and the purport as alwhich will work a reversal of the case.

leged in the indictment did not agree, and [6] III. It is claimed by the appellant that the court said (101 Ind. loc. cit. 382): there' was a fatal variance between the allegations of the information and the note pro

“Now, in reason, the purport of recited words duced in evidence. The note introduced in is matter, not of fact, but of law, not for the

jury, but for the court, and on familiar prin. evidence begins as follows:

ciples it need not be alleged. *

Regard"$500.00

September 16, 1920. ing, then, the purport clause as unnecessary, “Ninety after date we promise to pay," and therefore surplusage, the order being set etc.

out in hæc verba, the case is brought within

the curative provisions of the statute." The information alleges that the forged instrument which the defendant uttered was

Applying that reasoning to the present an obligation to pay $500 “ninety days after case, the averment of the purport of the inthe said 16th day of September, 1920.” The strument here is a conclusion of the pleader argument is that the note offered in evidence, as to the legal effect of the instrument. Or. having no time stated for the payment, was dinarily a conclusion of that kind would not payable on demand. That is probably cor- be good at all as an allegation, except that rect, under section 794, R. S. 1919. If that the statute (section 3901, R. S. 1919) makes it were all, there certainly would be a variance suflicient in the absence of the tenor. It is between the instrument alleged and the in- absurd to say that the defendant was not strument introduced in evidence; but after made aware of “the nature and cause of the the purport of the note is alleged the in-accusation" when the instrument which she formation proceeds as follows:

was charged to have uttered was copied ver

batim on the face of the charge. “Which said forged, counterfeited, and false

IV. Some objections are made to the inly made instrument and promissory note is of

structions. We find it unnecessary to disthe tenor following, that is to say."

cuss those, because on another trial, if the Then follows an exact copy of the note state should elect to file an amended inforwhich was introduced in evidence. In a case mation, the instructions doubtless will be of this kind, the tenor of an instrument is drawn to meet the issues presented, and the an exact copy of the instrument. The pur- objections now presented will disappear, port of the instrument, as the term is con For the reasons mentioned, the judgment strued, is the legal effect of the instrument. is reversed, and the cause remanded. 19 Cyc. 1397 and 1398. In this case the in All concur.

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