The State v. Allen
| Decision Date | 13 June 1893 |
| Parties | The State v. Allen, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Criminal Court. -- Hon. John W. Wofford, Judge.
Affirmed.
Charles V. Fyke for appellant.
(1) Defendant's demurrer to the evidence should have been sustained. (2) The court erred in refusing instruction No. 2 asked by defendant. The question in the case was whether or not H. A. Faunce was a fictitious name. This instruction submitted that question properly to the jury, and should have been given. The court did not, by any instruction for the state, submit that question. (3) The court erred in refusing defendant's instruction No. 3. It is impossible to conceive upon what theory the court refused that instruction. It fairly submitted to the jury a question of fact which it was necessary for them to pass upon, and if they found that H. A. Faunce existed and signed the check, then how could the defendant be guilty of forging the checks? Whether or not Faunce had any money in the bank upon which the check was drawn is under this indictment wholly immaterial. Defendant is not indicted for obtaining money under false pretenses, or by means of a trick; but the specific charge against him is forgery and passing a forged check, knowing the same to be a false and forged check, and not that there was no such person as H. A. Faunce. The state has wholly failed to establish the defendant's guilt of that charge, and the cause should be reversed and the defendant discharged.
R. F Walker, Attorney General, and Marcy K. Brown, Prosecuting Attorney, for the state.
(1) The indictment is sufficient. State v. Watson, 65 Mo 115; State v. Phillips, 78 Mo. 49; State v. Yerger, 86 Mo. 33; State v. Rucker, 93 Mo. 88; State v. Warren, 109 Mo. 430. (2) No error was committed by the court in its instructions, which fully covered the case and correctly declared the law. State v. Pullens, 81 Mo. 387; State v. Warren, 109 Mo. 430; State v. Mix, 15 Mo. 158. (3) No error was committed by the court against defendant in the admission or exclusion of evidence. It is always competent for the state, after having shown that the defendant has passed, or attempted to pass, a false, forged or counterfeited instrument, in order to show guilty knowledge, or criminal intent, of the defendant, to prove that he had passed other false, forged or counterfeited instruments of a similar kind to other persons at different times before or subsequent to the indictment. State v. Mix, 15 Mo. 153, and cases cited on page 155; 1 Bishop on Criminal Procedure [3 Ed.], secs. 1126-1128; 2 Bishop on Criminal Procedure [3 Ed.], sec. 428, and cases cited in note 11; State v. Williamson, 106 Mo. 163; State v. Greenwade, 72 Mo. 298; State v. Harrold, 33 Mo. 496; State v. Gabriel, 88 Mo. 631; State v. Jackson, 95 Mo. 623; State v. Bayne, 88 Mo. 604; State v. Myers, 82 Mo. 558. (4) The evidence was ample upon every fact necessary for the state to prove, and clearly and abundantly shows the defendant to be guilty of the offense for which he was convicted. State v. Warren, 109 Mo. 430; 2 Bishop Criminal Practice [3 Ed.], secs. 427a and 428; State v. Horner, 48 Mo. 520; State v. Phillips, 78 Mo. 49; State v. Foster, 65 Mo. 437; State v. Rucker, 93 Mo. 88; State v. Chamberlain, 89 Mo. 129. The well-established rule in this state is, that where the testimony is sufficient in the judgment of the trial court to warrant the submission of the question of defendant's guilt or innocence to the jury, and they have found him guilty, such action will not be reviewed here unless it clearly and affirmatively appears that this discretion and judgment has been abused. State v. Jackson, 106 Mo. 181; State v. Howell, 100 Mo. 628; State v. Orrick, 106 Mo. 111; State v. Lowe, 93 Mo. 547; State v. Hicks, 92 Mo. 432; State v. Hammond, 77 Mo. 158; State v. Gann, 72 Mo. 374; State v. Musick, 71 Mo. 401; State v. Moxley, 115 Mo. 644.
The defendant was indicted and convicted in the criminal court of Jackson county at the September term, 1892, under the following count in the indictment:
The evidence shows that on August 13, 1892, the defendant went into the National Clothing Co.'s store at Kansas City, and after purchasing some clothing, offered the check described in the indictment in payment for said clothing. He stated in answer to interrogatories that he worked on a farm for a man of the name of H. A. Faunce who lived near Independence, Missouri (a suburb of Kansas City), and that the check had been given to him in payment for his week's wages. His appearance being anything but that of a farm laborer, and his actions arousing the suspicions of the proprietor of the store, said proprietor immediately caused inquiries to be made of a neighboring business man (who had resided at Independence and was well acquainted in that locality), as to whether any such person as H. A. Faunce existed. Upon information thus received, he reported the matter, and defendant was apprehended and arrested.
The state, in order to show guilty knowledge of defendant, proved by the witness Goldenberg, the proprietor of another clothing store in Kansas City, that shortly before, on the same day, the defendant bought some clothing from the store of said witness, after making a similar statement to those already made by him at the store of the National Clothing Co., and gave him in payment therefor another worthless check for $ 26.75 on the same bank, signed with the same name, H. A. Faunce.
The state further showed by the paying teller of said Midland National Bank, who had been connected with that bank and other banks in that city for over ten years, and was well acquainted with the residents of that county, that he knew of no such person being in existence as H. A. Faunce; that no such person had any money deposited with said bank; that there was no such name on the books of the bank, and no record of there ever having been any such person who then had, or had ever had at any time, any money deposited or any account whatever with said bank.
Defendant offered one witness, H. C. Lewis, another clothing merchant of Kansas City, by whom he proved that a man representing himself as H. A. Faunce about the same time passed a check on him on the same bank for $ 28.50, purporting to be drawn by Frank M. Conway, which also proved to be worthless. The purpose of this evidence was to disprove that H. A. Faunce was a fictitious person, but Mr. Lewis testified he never saw the man prior to his passing the check, and had never seen him since, and knew no such man. It was then shown by the defendant that the checks introduced by the state were in the same handwriting of the one received by Lewis.
Defendant did not testify in his own behalf and offered no other evidence of the existence of H. A. Faunce.
The defendant asked and the court refused to give the following instructions:
To the refusing of which instructions and each of them the defendant then and there at the time excepted.
I. The refusal of the first instruction prayed by defendant was not error. It was not at all essential to his conviction under the second count that he should have personally affixed the fictitious name to the check. He was charged only with unlawfully having it in his possession, knowing it to be forged, and feloniously attempting to utter and pass it.
II. The third instruction, that if the jury believed there was such a man in existence at the time the checks were executed, they should acquit, was properly refused, because there was not a scintilla of evidence that such a person ever existed.
The testimony of Mr. Lewis that the party...
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