State v. Warren

• Decision Date: 28 March 1892
• Citation: 109 Mo. 430,19 S.W. 191
• Parties: STATE v. WARREN.
• Court: Missouri Supreme Court

19 S.W. 191

109 Mo. 430

STATE v. WARREN.

Supreme Court of Missouri, Division No. 2.

March 28, 1892.

FORGERY — INDICTMENT — INSTRUCTIONS — EVIDENCE.

1. An indictment alleging that defendant uttered and published a forged check, knowing it to be forged, with intent to cheat and defraud, was sufficient, though it did not allege the name of the person defendant intended to defraud.

2. It was error for the court in its instructions authorizing a conviction under such indictment to omit the issue of defendant's fraudulent intent.

3. Where the evidence showed that Stramche was well known to the persons to whom defendant presented the check, and that he told them it was drawn by Stramche, but that the name actually signed to the check was "Scramshey,' the question whether the attempted forgery was so imperfect and inaccurate as not to deceive a man of ordinary prudence was for the jury.

Appeal from criminal court, La Fayette county; JOHN E. RYLAND, Judge.

Indictment against Richard W. Warren for uttering and publishing a forged check. From a judgment entered on a verdict of guilty defendant appeals. Reversed.

U. G. Phetzing and John Welborn, for appellant. John M. Wood, Atty. Gen., for the State.

THOMAS, J.

Defendant was sentenced to imprisonment in the penitentiary for a term of seven years, by the criminal court of La Fayette county, for uttering and publishing a forged check. In January, 1891, he had in his possession a check purporting to have been drawn by Thomas Scramshey on the Morrison-Wentworth Bank of Lexington, payable to R. W. Warren or bearer, for $93, which he asked two or three men to cash, stating that it was drawn by Thomas Stramche. The parties to whom he presented it refused to take it, and give him the money on it.

The evidence shows that a man by the name of Thomas T. Stramche lived near Lexington, but no one knew any person by the name of Thomas Scramshey. There was evidence tending to prove the insanity of defendant, a defense which he interposed, and it clearly appeared in evidence that, at the time he was trying to get the money on the check, he was under the influence of liquor.

1. The fourth count of the indictment under which defendant was found guilty avers that he uttered and published the forged check, knowing it to be forged, with intent to cheat and defraud, without giving the name of the party he intended to defraud. This is sufficient, under our statute. State v. Phillips, 78 Mo. 49; State v. Rucker, 93 Mo. 88, 5 S. W. Rep. 609.

2. But while it is not necessary that an indictment for uttering a forged instrument should charge an intent to defraud any particular person, yet the intent to defraud is an essential element of the crime, and it must be averred and proved. Kelly, Crim. Law, § 728; 3 Greenl. Ev. § 103; 8 Amer. & Eng. Enc. Law, 459. In the case at bar, the court, in all its instructions authorizing a conviction under the fourth count, wholly omitted the issue of defendant's fraudulent intent. This was...