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ly to locate the purported drawer of the There need be little room for a discussion check.

of the question as to whether the indorseHenry Reece testified that he was acquaint- ment of Henry Reece's name on the check ed with the appellant; that the first time he rendered it a material part of same. He was saw the check was when the American Ex- the payee named therein. Under the law of change Bank, to which it had been presented negotiable instruments, the indorsement of for payment, gave him notice of it; that he the payee's name thereon renders him liable did not indorse his name on the back of it to the holder of the paper for its payment. at any time; that the appellant once present. In the absence of the indorsement, the prime ed a check to him, which purported to have essential to enable the holder to convert the been drawn by J. T. Swope, requesting him check into cash would be absent. After the to cash it for her, which he did; that the indorsement, the holder, if the check was gencheck was returned to him for want of uine, could have looked to Reece for its payfunds; that he redeemed it, but was never re- ment. It will be seen that the effect of the paid by the appellant. J. T. Swope testified indorsement was to give a value to the check that he never signed the check purporting which enabled it to be readily converted into to bear his signature.

cash, which it did not theretofore possess. Appellant's testimony was that she had This value was limited only by the solvency never seen the check purporting to have been of those liable for its payment. Saucier v. signed by J. T. Swope and did not know him; State, 102 Miss. 647, 59 South. 858, Ann. Cas. that she did not know J. James Reisen, and 1915A, 1044. that Henry Reece brought the check to a [2] Aside from the assumption as to the Mrs. Minor and asked her to get the cash; genuineness of the check, it is contended that that Mrs. Minor could not do so, and that ap- the indorsement is a collateral matter, and pellant volunteered to get the money for her; that it should have been specifically alleged that she cashed it at Mr. Gallagher's store as the offense and proved as laid. It will be and gave Mr. Reece $5 on it, and that he seen from an examination of the English loaned her the balance; that Reece indorsed case (Rex v. Birkett, Russ. & Ry. 257) here the check before giving it to Mrs. Minor to relied on to sustain this contention that the have it cashed. Mrs. Minor testified in cor- rule as thus announced was held not to aproboration of this statement.

ply except to indorsements on genuine bills In rebuttal Reece denied that he had sign- of exchange. Where the rule is read with ed the .check. The state offered testimony discrimination, it will be found thus limited to the effect that the general reputation of in Kelly's Criminal Law (30 Ed.) § 801. Its the appellant for truth and veracity was bad. further extension here, as sought to be made

Appellant urges the following assignments by the appellant, is unwarranted. of error: (1) The admission of the testi [3] While it is true that forgery, as demony of Henry Reece, the payee, to prove fined by our law, is a statutory crime, and a the forged indorsement; (2) the giving of an charge therefor should fall within the statuinstruction numbered 4 for the state; (3) the tory definition, the rule is well established refusing of an instruction in the nature of that the making and uttering of a forged ina demurrer to the evidence asked by the ap- dorsement on a negotiable instrument of the pellant.

name of the payee is held to be a forgery, I. The competency of the testimony of Hen- although not in terms so classified in either ry Reece to the forgery of the indorsement of sections 3141 or 3449, R. S. 1919; and eri. his name on the back of the check is chal- dence of such indorsement may be admitted, lenged on the ground that the information is although not alleged in the indictment to general in its terms and contains no aver- prove the forgery of the instrument. ment of the forging of the indorsement. In harmony with this rule is our holding This contention is based upon the assumption in State v. Carragin, 210 Mo. loc. cit. 372, 109 that the check, aside from the indorsement, S. W. 559, 16 L. R. A. (N. S.) 561, in which was genuine. The proof shows this assump- it was said: tion to be without foundation. This conclu "As to the last assignment of error, that the sion agrees with the facts, and none of the indorsement was not such an instrument or circumstances connected therewith have the writing' as is contemplated by the statute deeffect to lessen its probative force. On the nouncing forgery, we think that an indorsecontrary, all of the evidence, as will more spirit of our statute (now section 3446, R. S.

ment comes clearly within the letter and the fully appear in discussing its sufficiency, 1919), which provides: 'Every instrument, tends to show that the check was, as charg- partly printed and partly written, or wholly ed, without a semblance of genuineness. printed, with a written signature thereto, and

[1] The rule is well established that, where every signature of an individual, firm or coran entire instrument is alleged to have been porate body,

and every writing purforged, the charge is sustained by proof of ported to be such signature, shall be deemed the forgery of any material part of same.

a writing and a written instrument within the 2 East, Pl. Cr. 979; Comm. v. Butterick, 100 meaning of the provisions of this chapter.'” Mass. loc. cit. 18; State v. Gardiner, 23 N. So the court said in U. S. v. Jolly (D. C.)


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(248 S.W.) "The next objection is that the indictment of guilt arising from the possession of a is only for the forgery of an indorsement upon forged instrument. the post office warrant, which is not within

[5] A more comprehensive objection to the Revised Statutes, & 5414, but is at most only instruction is that it is not responsive to the a common-law or state offense, of which this issue submitted, or, more definitely, the crime court has no jurisdiction. This is a very nar

charged. While the offense here charged is row view of the statute, and trims it to dimensions that would very materially impair its classified as a forgery, the distinction beusefulness, and leave the obligations and se tween a forgery as usually understood and curities of the United States at the mercy of the passing, uttering, or publishing of a forgers and counterfeiters. I do not compre- forged instrument is not to be ignored. 2 hend why the name of the payee is not as much Bish. Cr. Pro. 428. a part of the instrument as that of him who,

[6] Three things are essential to constitute in behalf of the United States, signs the war.

the crime of forgery as generally understood: rant or check."

(1) A false making or other alteration of an

instrument of writing ; (2) a fraudulent inSimilarly it was said in State v. Barkuloo, tent; (3) an instrument so altered as to be 18 Wash, 52, 50 Pac. 577:

apparently capable of effecting a fraud. 4 "The indorsement of the name of the payee Bl. Com. 247; 2 East, Pl. Cr., c. 19, § 1, p. upon the auditor's warrant certainly altered | 852. the warrant, for it changed the payee and it In defining an uttering, this court in an made it payable to another person, viz. to any early case (State v. Horner, 48 Mo. 521) says person who might present the warrant for in effect that to "utter,” as the term is empayment. This brings the action within the statute which makes it forgery to alter an au

ployed in the statute, means to offer a forged ditor's warrant. It also falls within the stat- instrument for payment with the representaute in that it was an indorsement of an order, tion by words or acts that the same is genufor the writing of the name of the payee on the ine, whether it be accepted or not. It is deback of the warrant is in eflect an order for fined elsewhere as the offering to another of the payment of the same to another person. a forged instrument with a knowledge of its Again, it is an assignment of writing obliga-falsity with the intent to defraud. Maloney tory, for another effect of the writing of the v. State, 91 Ark. 485, 121 S. W. 728, 134 Am. name of the payee was to assign the warrant St. Rep. 83, 18 Ann. Cas. 480 ; State v. Evans, to the holder of the same. We think the acts charged in the information plainly bring the 15 Mont. 539, 39 Pac. 850, 28 L. R. A. 127, case within the statute."

48 Am. St. Rep. 701. From these definitions

it will be seen that, notwithstanding the statSee Ann. Cas. 1915A, p. 1046; McGee v. utory classification, the offenses are generiState, 62 Tex. Cr. R. 358, 137 S. W. 696; cally distinct one from the other. RecognizCarlton v. State, 60 Tex. Cr. R. 584, 132 s. ing this fact, this court held in State v. WilW. 775; 2 Whar. Cr. L. (11th Ed.) p. 1154, liams, 152 Mo. loc. cit. 123, 53 S. W. 426, 75 note 1.

Am. St. Rep. 441, that “being distinct offensMany other cases to a like effect may be es, neither is merely a degree of the other.” found in the elaborate notes on this subject In that case an acquittal of the charge of utappended to Saucier v. State in Ann. Cas. tering and having in defendant's possession a 1915A, 1046.

forged note was held not to be a bar to a [4] II. The second assignment is as to the subsequent trial under another indictment giving by the court of this instruction: charging him with the forgery of the note.

The indictment for uttering was held to have “The court instructs the jury that the pos: charged a different offense from that chargsession of a forged instrument and an atteinpt to sell it are evidence that the possessor forged

ing the forgery. it."

"Forgery," says the Supreme Court of Ar

kansas (Ball v. State, 48 Ark. loc. cit. 102, 2 This instruction is counter to the rule as S. W. 465) "is one offense, and uttering a forgrecently announced by this court in State v.

ed instrument as genuine, knowing it to be Swarens (Mo. Sup.) 241 S. W. 934, concerning false and forged, is another." the presumption arising from the possession of recently stolen property.

The rule as The fact that under statutory authority in there announced, under the reasoning of a some jurisdictions counts for each of these majority of the court, would find appropriate offenses may be joined in one indictment, and application to a like presumption that has the state not be compelled to elect, does not always heretofore obtained in regard to the militate against the correctness of this conPossession of a forged instrument. This con- clusion. The facts alleged in an indictment trariety would alone be sufficient to render for forgery, if shown to be true, would not the giving of the instruction error. It would warrant a conviction for uttering a forged probably be so held if it conformed, as it instrument. On a trial for the latter offense, does not, to the approved requirements of an proof of the forgery of the check by the apinstruction in State v. Pyscher, 179 Mo. loc. pellant was not necessary. That it had been cit. 156, 77 S. W. 836, as to the presumption forged and that appellant uttered it knowing

it to have been a forgery was all that was Action by Lou Breen against the Johnson necessary. It therefore appears that the evio Bros. Drug Company. Judgment for dedence necessary to support a conviction upon fendant, and plaintiff appeals. Affirmed. one charge would not be sufficient in the

W. H. Douglass, of St. Louis, for appellant. other. State v. Carragin, supra; State v. Williams, supra; State v. Blodgett, 143 Iowa,

Holland, Rutledge & Lashly, of St. Louis,

for respondent. 578, 121 N. W. 685, 21 Ann. Cas. 231; State v. Bigelow, 101 Iowa, 430, 70 N. W. 600;

Statement. Com. v. Miller (Ky.) 115 S. W. 234; Hooper v. State, 30 Tex. App. 412, 17 S. W. 1066, by plaintiff, Lou Breen, in the circuit court

RAILEY, C. This action was commenced 28 Am. St. Rep. 926. The instruction, therefore, was in no wise

of the city of St. Louis, Mo., on January 19, responsive to the offense charged, and, al- Johnson Bros. Drug Company, a Missouri

1921, to recover damages of the defendant though incorrect as applied to the presumption flowing from the possession of a forged have been sustained by her on December 14,

corporation, for personal injuries alleged to Instrument, could not be otherwise construed than as prejudicial to the appellant, and we 1920, by falling on a sidewalk at the south

west corner of Seventh and St. Charles so hold.

[7] III. The unexplained possession of the streets, in the city aforesaid, in front of de check, the failure of the appellant to show,

fendant's place of business, as lessee. except in the most unsatisfactory manner,

She alleges in petition that, while walking how she obtained such possession, the offer: along the above sidewalk, a cane which she ing of same for sale and the selling of same,

was compelled to use in walking went into through the medium of a forged indorsement broken out of the sidewalk light in front of

a small hole where the glass had been of the payee's name, her application to her own use of the proceeds, her connection with the building occupied by defendant which a like transaction shown to have been fraud- caused her to fall and sustain the injuries

complained of in petition. It is alleged: ulent, and her general unsavory reputation, afford ample grounds for the submission of That the sidewalk light aforesaid was allowed the case to the jury.

and permitted to be put in said sidewalk for The error committed in the giving of the the use and benefit of the building occupied by instruction, however, requires that the case building; "that the hole caused by glass in

defendant and the tenants and lessees of said should be reversed and remanded; and it is frame work of said light which was broken so ordered.

out, and into which plaintiff's cane went, had All concur.

existed for some time prior to the time of plaintiff's fall, and so long that the defendant knew, or by the exercise of ordinary care could have

known, of said defective condition of said sideBREEN V. JOHNSON BROS. DRUG CO.

walk on account of the holes in the sidewalk (No. 23462.)

light as aforesaid, and that said sidewalk, on

account of the holes where the glass had been (Supreme Court of Missouri, Division No. 2. broken out of the framework in said sideFeb. 23, 1923.)

walk light, was dangerous and was not reasonably safe for the use of pedestrians in paes

Plaintiff 1. Landlord and tenant am 167 (5)–Tenant of ing along and using said sidewalk. building abutting sidewalk held not liable for tained in the manner aforesaid were directly

further says that the injuries which she susinjury from fall thereon.

caused on account of the negligence of the deA tenant is not liable to a pedestrian falling fendants in allowing and permitting the sideon abutting sidewalk by reason of a defect walk to remain in a defective condition by failtherein, where he did not produce or aid in ing to repair it where the glass had been producing the defect, being under no duty to broken out of the framework in the sidewalk repair the city's walk.

light which caused the holes into which plain. 2. Landlord and tenant am 167 (5)-Tenant not and which said condition the defendants knew,

tiff's cane went and caused her to be injured, bound to anticipate that small hole in abutting or by the exercise of ordinary care could have sidewalk would result in injury.

known, and negligently failed to repair." The tenant of a building, in the exercise of ordinary care, held not bound to anticipate She prayed judgment for $15,000, etc. that a hole one inch in diameter, in side The petition likewise alleges: walk otherwise safe, would result in injury from a pedestrian's cane slipping into the hole

"That plaintiff, Lou Breen, served notice on causing her to slip and fall, assuming that it the mayor of the city of St. Louis, Mo., on the is the duty of a tenant to keep sidewalks in re- 19th day of January, 1921, and within 90 days pair.

of the date of the accident, as provided by section 8904 of the Revised Statutes of the state

of Missouri for the year 1919, setting forth that Appeal from St. Louis Circuit Court; Ben- she would claim damages against the city of St. jamin J. Klene, Judge.

Louis on account of the injuries which she

(248 S.W.) sustained as alleged on the 14th day of De- that she saw plaintiff when the latter was cember, 1920, caused by falling on a sidewalk brought into the drug store after her fall. at the southwest corner of Seventh and St. She was shown Plaintiff's Exbibit A, and Charles streets, and setting forth the manner said it was a fair representation of defendin which she was caused to fall, and the inant's place of business. Her attention was juries which she sustained, and that she would called to certain dots or holes described on claim damages against the city on account of the injuries so sustained."

Exhibit A as being in the sidewalk.


noticed one of them, and the photograph The amended answer, on which the case gives a fair representation of them. She was tried, contains a general denial, and the had noticed these holes there about two following:

weeks before the accident.

On cross-examination she testified that she “Further answering, defendant states that, commenced work for defendant in August, if on the occasion mentioned in plaintiff's petition plaintiff fell by reason of placing her cane 1920, and was notified on December 18, 1920 in a hole in the sidewalk, mentioned in her pe

that her services were no longer needed. She tition, such injuries were directly due to neg- admitted that Exhibit A only showed one ligence on the part of plaintiff in failing to hole marked E, with a circle around it, while exercise ordinary care to observe her where the other places thereon were dark spots. abouts, and in failing to exercise ordinary care She testified that she did not go out to look thereafter to avoid placing her cane in such a at the sidewalk on December 15, 16, 17, and manner as to cause her to lose her balance and went home on the 18; that she did not look fall."

at the sidewalk on either December 10, 11,

12, or 13, 1920. The reply is a general denial of the new

On re-examination she said that at the matter pleaded in said answer.

time of the accident there were holes in the

sidewalk where these dots appear in ExhibAppellant's Evidence.

it A. Appellant testified, in substance, that she Conrad Cohnheim testified in behalf of was injured on the sidewalk described in plaintiff, that he was a photographer and petition, in front of the property occupied by took Exhibit A on December 15, 1920; that defendant, on December 14, 1920; that she those black dots on Exhibit A, between C and was injured a little after 3 o'clock in the |D and E were holes in the sidewalk with the afternoon ; that she was on the west side of glass broken out; that he observed these Seventh street going south and had just holes when the picture was taken. crossed St. Charles street and stepped on the Wm. Schmieder, inspector of buildings in sidewalk in front of defendant's premises; St. Louis, testified that the basement of the that her cane went down in the hole; that building occupied by defendant on October she was walking with the cane in her right | 13, 1921, extended toward the street past the hand; that it went down in the hole, she lost building line 9 feet 10 inches, and the sideher balance, while depending on the cane for walk was over the latter. It was admitted support, and fell forward full length on the that defendant used the lights in the sidesidewalk; that after she fell on the sidewalk walk. she did not notice anything; that the cane Leaving out of consideration the evidence was still in her hand and down in the hole; in regard to plaintiff's alleged injuries, the that she could not get up, screamed, and was foregoing covers all her evidence in chief. carried into defendant's drug store by two Defendant thereupon offered a demurrer to gentlemen; that she was taken to the City plaintiff's evidence in chief, which was overHospital and after being treated was taken ruled. home. She detailed her injuries, suffering,

Defendant's Evidence. and the medical treatment which she received. She testified that before the accident on Fred W. Klunge, Jr., was a retail cigar December 14, 1920, she had used a cane for dealer in defendant's place of business. He two or three years on the outside but not in testified that it was a part of his duty as the house. She described her former inju- manager of defendant's business to look after ries, and said she was still a cripple there the sidewalk aforesaid ; that every week de

fendant's elevator man was required to inOn cross-examination plaintiff testified spect this walk, and fix it if it needed rethat after falling she did not look at the side- pair; that, if one of the glass disks should walk where she fell; that up to within three be out, it was Crawford's duty to put cement weeks of the trial herein no doctor had ex- in the opening, and he did so, and mixed his amined her leg or otherwise for treatment own ingredients; that from time to time he after she left the City Hospital. She testified (witness) looked over the sidewalk; that on her cane was a broom handle that was cut the Tuesday previous to the accident Crawoff, and a rubber put on the end of it. ford plugged the holes with cement; that he

Margaret Hillenkoetter testified that on had no knowledge of any holes being in the December 14, 1920, she was working for de- sidewalk on December 13 or 14, 1920. He fendant at its drug store above described ; | testified that he talked with plaintiff when


she was brought into the drug store, and she , other, and which were offered in evidence as said she was in poor shape and should have defendant's Exhibits I-A and I-B. Only a used better judgment than to have attempt- few small white dots appear in I-A, and in ed to come down town alone.

1-B there are 10 or 12 black spots. He testiOn cross-examination witness said that, fied that the latter were produced by moistenwhen plaintiff was brought in the store, he ing a rag and touching the top of the glass, stepped outside and saw nothing wrong with which appears dark in the second picture. the walk; that he saw no holes at that time; He gave it as his opinion that the black spots that he went out the second time, and there in Plaintiff's Exhibit A do not represent were several holes in the walk.

holes, but depressions made by moisture. Frank Daschel was city sidewalk inspector, and had been so engaged about 12 years. He

Plaintiff's Rebuttal. testified that the sidewalk in question was under his supervision and personal inspec

Plaintiff denied having made the statetion; that he would see said walk two or ments testified to by Johnson, and offered in three times a week; that he examined it on evidence the cane which she was using at Monday, December 13, 1920; that before the time of accident. She said the lower part of accident he saw one or two very small holes the cane was made from a broomstick and in the sidewalk; that he notified defendant, the other part made from an umbrella top. and it was fixed within the next 24 hours;

The foregoing covers substantially the testhat the two holes were about one inch at timony in the case. the bottom; that these were the smallest size The jury returned a verdict, 10 of the glass dials of any walk in the city; that they panel voting therefor, in favor of defendant. are the smallest glass dials that are used; Plaintiff filed a motion for a new trial, which that they are 144 inches at the top, and ta- was overruled, and she appealed the cause to

this court. per down to one inch at the bottom. Thomas C. Crawford testified that he ran

Opinion. the elevator for defendant in December, 1920,

[1] I. The petition in this case alleges that and fixed the holes in above sidewalk;' that defendant, as tenant and lessee, occupied the he would always do it on Sunday morning; building at the southwest corner of St. that if he found any holes he would plug Charles and Seventh streets in St. Louis, them with cement on the same day he saw Mo., and that it was guilty of negligence in them; that he was not aware of any holes there at time of accident; that he went there permitting a small hole to remain in the

sidewalk in front of said property, by reason the next morning after the accident and saw of which plaintiff's cane, which it was necesa few holes around there'; that there was

sary for her to use in walking, went into said new glass which had been pushed through hole where glass had been broken out, caused by somebody; that the holes were three or her to fall and sustain the injuries complainfour feet from defendant's drug store and ed of in petition. It is not claimed that de toward the St. Charles street entrance, and fendant, or any of its employees, produced toward the St. Charles street side; that he said hole, or in any manner aided in produclooked for holes on the Seventh street side

ing the same. On the contrary, plaintiff, in the next day after the accident and did not her petition, seeks to recover damages from see any there; that he repaired holes there

respondent on the theory that it impliedly the week before the accident. C. P. Johnson, president of the defendant was under obligation to keep said walk in

repair. Even if there had been an ordinance company, testified that Crawford ran the elevator, and it was his duty every Sunday to the defendant to keep said walk in repair,

of the city of St. Louis in existence requiring look over the sidewalk, and, if he found a it would not have afforded the plaintiff a hole, to fill it with cement; that he was at right of action against defendant in view of the store nearly every day, and looked at

the facts aforesaid. the sidewalk as he went in and out; that he saw plaintiff when she was brought into de- 240 s. w. 147, plaintiff sued the abutting

In Russell v. Sincoe Realty Co. (Mo. Sup.) fendant's store on day of accident. While

owner for damages which she sustained on there, she said she had been sick for quite a

account of snow and ice having been negli. while, and was very weak; that she really gently permitted to remain on the sidewalk had no business coming down town; that she adjacent to said property, in violation of a was not strong enough to come down, and should not have come down; that she said city ordinance which reads as follows: nothing about any hole in the sidewalk;

"Sec. 563. Snowo, etc.-Repairs. It shall that he had no knowledge of any hole being be the duty of all persons owning or occupying there on day of accident.

any real property fronting upon any street to Frederick D. Hampson, president of the front and alongside of said property and on the

keep the sidewalk, curbing and guttering in Hampson Photographic Company, who had same side of the street in good repair and been in the business for 26 years, testified order, and to clean the same, and remove from that he took two pictures of the sidewalk in any such sidewalk, curbing and guttering all

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