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

"Afterwards, on the same day comes the defendant, by his attorney, and files herein his motion praying the court to set aside its judgment in the above cause and grant him a new trial, and the court having seen, heard, and ful

ly understood said motion and having been fully

advised in the premises doth overrule same. At the same day comes the defendant herein, by his attorney, and files herein his motion, praying the court to arrest and set aside its judgment, cause shown, and the court, having seen, heard, and fully understood said motion, and having been fully advised in the premises, doth overrule same."

Opinion.

Defendant challenges the sufficiency of the information because (1) it charges no of fense under the laws of the state of Missouri; (2) it is vague, indefinite, and so disconnected that it does not legally inform the defendant of the accusations against him; (3) the word "with" is omitted.

* *

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66

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wounding. This point is ruled against defendant, as the allegation in the information is sufficient to show that the defendant died within that time.

[3] II. We cannot consider the purported hill of exceptions, because, by a reference to

the above statement of facts and the record herein, it may be ascertained that the motions for a new trial and in arrest of judgment, while filed on the same day that judg ment was entered and sentence pronounced, were not filed until afterwards, and therefore, in contemplation of law, were not filed. The record shows that on September 16, 1921, the court informed defendant that he had been found guilty of murder in the first degree by a jury, and punishment assessed at imprisonment in the state penitentiary for the term of his natural life; and being asked by the court if he had any legal cause to show why judgment should not be pronounced against him according to law, and still failing to show cause, the court entered the judgment and sentenced him. Afterwards the motions for a new trial and in arrest of judgment were filed. Section 4079, R. S. Mo. 1919, is as follows:

"Sec. 4079. The motion for a new trial shall be in writing, and must set forth the grounds or causes therefor, and be filed before judgment," etc.

[1] The third, which probably includes the . second challenge, is directed to that part of the information as follows: Did make an assault and a dangerous and deadly weapon, to wit. It is the contention of defendant that the information should read "did make an assault with a dangerous and deadly weapon." Construing the information, we do not find it to be vague, indefinite, or disconnected, or that the word The statute has been construed in some "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 did shoot off and discharge a dangerous and deadly weapon, to wit, a pistol, then and there loaded, at and against him, which they, then and there had and held in their hands." Reading it thus: "It is coherent, sensible and definite and fully informs the defendant of the charge against him." We have considered the case of State v. Rector, 126 Mo. 328, 23 S. W. 1074, and do not consider it in point.

**

"When the record, as in this case, shows that the sentence was pronounced and judgment entered before the motion for a new trial was filed it will be presumed, in the absence of a contrary showing, that the trial court was informed by the defendant that he did not desire to be heard on a motion for new trial. If defendant to file a motion for new trial before entering had moved the trial court to grant him time judgment, and that request had been denied, then such ruling denying time to file a motion 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 not have been true, for the information and evidence show that the deceased died of his mortal wound on the 11th day of March, 1921, two days after the assault. The probable office of the allegation of the date of the death is to show that the deceased died

judgment has been actually pronounced by the court; in all such cases it becomes the duty of defendant to move the court to vacate or expunge from its records such premature or unauthorized judgment before filing his motion for new trial. Otherwise, the judgment must stand as an absolute bar to the consideration of errors found only in the bill of exceptions."

(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 incause 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 in accordance with the verdict of the jury. Thereafter and upon the same day, the defendant filed his motion to set aside the verdict and for a new trial, which was over

(Supreme Court of Missouri, Division No. 2. $500 "90 days after the said 16th day of Sep

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Purport; Tenor.]

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

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 asking the court to require the state to elect upon which count it would stand, and the

state elected to stand on the second count.

The defendant then moved the court to require the state to elect upon which of the two offenses charged in the second count it would proceed to trial. The court overruled this motion, stating that the second count charged only one offense. These several rulings of the court are assigned as errors.

WHITE, J. On the 20th day of January, 1922, in the circuit court of Pike county, the appellant was found guilty of forgery in the third degree, and her punishment assessed at three years' imprisonment in the peniten-tirely sufficient after the evidence was in

tiary.

Miss Collins, for many years a teacher, was at one time president of Pike College, in Bowling Green. Subsequently she was admitted to the bar, and was a practicing at torney at the time the information in this

case was lodged against her, March 26, 1921. In the month of September, 1920, she undertook to negotiate a loan for one Mrs. Ida Burrus. She produced a mortgage and a note for $500, with the signatures of Daniel Grimes, a colored man, and Sarah Smith, his sister, whose name was Randall at the time of the trial. The defendant told Mrs. Burrus that she was attorney for Daniel Grimes. She had in fact represented Daniel Grimes in some business. She had instituted in the circuit court a suit for him affecting the title to 40 acres of land in which his sister, Sarah Smith, was interested. That suit was pending at the time of the trial.

[1] There was no error in overruling the motion filed before evidence was introduced. The election between the two counts was en

troduced. It is unnecessary to elucidate the doctrine upon which that ruling is held to be correct, further than to cite cases in its support. State v. Daubert, 42 Mo. 242; State v. Young, 266 Mo. loc. cit. 732, 183 S. W. 305; State v. Christian, 253 Mo, loc. cit. 393, 394,

161 S. W. 736.

II. A different question arises in determining the propriety of the ruling in regard to the different causes of action stated in the second count. Three questions present themselves for solution: (a) Did the second count state two causes of action? (b) Was the motion to elect the defendant's proper method to reach that infirmity? and (c) Was the defendant harmed by the ruling of the court?

The second count is as follows:

"Second Count. And the said Rufus L. Higginbotham, 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 name. 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 instrument 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 the general trend and effect of the facts tes

tified to.

I. The information was in two counts. The first count charged forgery of the Grimes note, and the second the uttering and selling of that note. The defendant, at the beginning of the case, before evidence was introduced, filed a motion to require the state to elect on which count it would pro

ported to be created, which said forged, counterfeited, and falsely made instrument and promissory note is of the tenor following, that is to say:

"'Witness: F. A. Davis.

Sarah Smith.
his

(248 S.W.)

"Daniel X Grimes.

mark

"[U. S. Documentary 2 Cents.] "'No.

19-16-1920.

"'LMC'

R

nually to become as principal and bear the same passed." Section 3441 declares that any perrate of interest. son who, "with intent to defraud, shall pass, utter or publish as true" any forged instrument, "knowing such instrument * * to be forged" shall be guilty of forgery in the same degree as hereinbefore declared for "forging, altering or counterfeiting the instrument." Every element of the offense condemned in each section is alleged in the information; the defendant is charged in one count with violating both. Those sections condemn selling and uttering forged instruments. The instrument described here is covered by section 3436, which says the forgery of any instrument in writing whereby a pecuniary demand is created, "and which is not hereinbefore declared to be forgery in some other degree," is declared to be forgery in the third degree. The sections prior to that relate to particular classes and kinds of instruments; section 3436, being general in its statement, relates to the forgery of an instrument like the note here.

-unlawfully, willfully, fraudulently, and feloniously did sell, utter, pass, exchange, and deliver and publish as true, to one Mrs. Ida Burrus, for a consideration, with the intent then and there to have the same passed, and with the intent then and there and thereby her, the said Mrs. Ida Burrus, to injure, cheat, and defraud, and she, the said Lulu M. Collins, then and there well knowing the said instrument and note to be forged, counterfeited and falsely made; and against the peace and dignity of

the state.

Rufus L. Higginbotham,
"Prosecuting Attorney within and for
the County of Pike, Missouri."

[2] Counsel for appellants in their arguments and brief say that this count charges three offenses: One under section 3439, one under section 3440, and one under section 3441, R. S. 1919. There is no trouble in determining that section 3439 cannot be applied to any of the allegations of the information, because that section defines the offense of having in possession a forged instrument with intent to defraud by uttering the

same.

[3] Sections 3440 and 3441 describe two separate and distinct offenses with relation to that kind of a forged instrument. Section 3440 is directed against the selling or delivering for a consideration of such instrument with intention to have the same uttered or passed, while section 3441 is directed against passing, uttering, or publishing 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 who 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 gery in the third degree. The punishment the last section is excepted, knowing the same 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 pass, utter or publish as true any forged, counterfeited or falsely altered instrument or writ-victed of two different crimes at one and the ing, or any counterfeit or any imitation of any gold or silver coin, the altering, forging or counterfeiting of which is hereinbefore declared to be an offense, knowing such instrument, writing or coin to be altered, forged or counterfeited, shall, upon conviction, be adjudged guilty of forgery in the same degree as hereinbefore declared for the forging, altering or counterfeiting the instrument, writing or coin so passed, uttered or published, or offered or attempted to be passed, uttered or published."

[4] A defendant cannot be tried and con

same trial. State v. Pace, 269 Mo. loc. cit. 687, 192 S. W. 428; State v. Carragin, 210 Mo. loc. cit. 371, 109 S. W. 553, 16 L. R. A. (N. S.) 561. A motion to quash or a demurrer would properly have been sustained to the indictment. It has been held by this court in the case of State v. Armstrong, 106 Mo. loc. cit. 413, 16 S. W. 604, 13 L. R. A. 419, 27 Am. St. Rep. 361, that a defendant may attack an information 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 same uttered or loc. cit. 240, 140 S. W. 902. Where no objec

tion is made to the information on account formation sets forth the purport and also of duplicity, it 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.