State v. Andrews
| Citation | 248 S.W. 967,297 Mo. 281 |
| Parties | THE STATE v. MARY L. ANDREWS, Appellant |
| Decision Date | 23 February 1923 |
| Court | United States State Supreme Court of Missouri |
Appeal from Pettis Circuit Court. -- Hon. H. B. Shain, Judge.
Reversed and remanded.
A. L Shortridge for appellant.
(1) The information does not mention a forged indorsement and does not state that the defendant knew the indorsement to have been forged. She was placed on trial charged with uttering a forged and counterfeited check, and was convicted of the charge of uttering a check on which an indorsement only is forged, thus being tried for an offense with which she has not been charged and which she had no opportunity to meet. The rule laid down by Kelly regarding forged indorsements is Kelly's Crim. Law & Prac. (3 Ed.) 704, sec. 801; Rex v. Birkett, Russell & Ryan, 251; State v. Carragin, 210 Mo. 355. A forged indorsement would constitute forgery within the meaning of our statute, but appellant's contention is she could not be placed on trial for uttering a forged check and then convicted of uttering a genuine check on which there was only a forged indorsement. The indorsement is collateral to the check, and a forgery of the indorsement can not be a forgery of the instrument. (2) Instruction numbered 4 reads "The court instructs the jury that possession of a forged instrument and an attempt to sell it, are evidence that the possessor forged it." The giving of this instruction is error (a) because the defendant is not charged with forging either the check or the indorsement, but simply with uttering it, and (b) because it requires defendant to explain away her supposed guilt, thus nullifying her presumption of innocence, as stated in a former decision of this court. State v. Hathhorn, 166 Mo. 240; State v. Psycher, 179 Mo. 156.
Jesse W. Barrett, Attorney-General, and Henry Davis, Assistant Attorney-General, for respondent.
(1) On the trial of a person charged with uttering a forged check, the introduction of evidence tending to prove a forged indorsement on the check is not error. State v. Witherspoon, 231 Mo. 718; State v. Mitton, 37 Mont. 366; United States v. Peacock, 27 Fed. Cas. No. 16019; State v. Miles, 22 Ida. 166. (2) The court erred in instructing the jury that the mere possession of a forged instrument and an attempt to sell it are evidence that the possessor forged it. State v. Hathhorn, 166 Mo. 240; State v. Swarens, 294 Mo. 139.
Appellant was charged by information in the Circuit Court of Pettis County with passing, uttering and publishing as true a forged check with the intent to defraud, as that offense is defined in Section 3441, Revised Statutes 1919. Upon a trial, she was convicted and sentenced to two years' imprisonment in the penitentiary; from which judgment, she appeals.
In April, 1921, the appellant presented a check for thirty-five dollars, to one Gallagher, a business man of Sedalia, for payment. The check purported to have been drawn on the Nelson State Bank, payable to Henry Reece or bearer, with J. James Reisen as drawer, and was endorsed on the back with the names of Henry Reece, M. L. Andrews and Union Watch & Optical Company. The check showed that the drawer had refused payment on it, and it was marked, "Has no account here." After it was returned to Gallagher, he asked the appellant about it, and she said she would see Henry Reece, as she had gotten the check from him and would get the money from him. She failed to comply with this promise, and Gallagher tried ineffectually to locate the purported drawer of the check.
Henry Reece testified that he was acquainted with the appellant; that the first time he saw the check was when the American Exchange Bank, to which it had been presented for payment, gave him notice of it; that he did not endorse his name on the back of it at any time; that the appellant once presented a check to him, which purported to have been drawn by J. T. Swope, requesting him to cash it for her, which he did; that the check was returned to him for want of funds; that he redeemed it, but was never repaid by the appellant. J. T. Swope testified that he never signed the check purporting to bear his signature.
Appellant's testimony was that she had never seen the check purporting to have been signed by J. T. Swope and did not know him; that she did not know J. James Reisen, and that Henry Reece brought the check to a Mrs. Minor, and asked her to get the cash; that Mrs. Minor could not do so, and that appellant volunteered to get the money for her; that she cashed it at Mr. Gallagher's store, and gave Mr. Reece five dollars on it, and that he loaned her the balance; that Reece endorsed the check before giving it to Mrs. Minor to have it cashed. Mrs. Minor testified in corroboration of this statement.
In rebuttal Reece denied that he had signed the check. The State offered testimony to the effect that the general reputation of the appellant for truth and veracity was bad.
Appellant urges the following assignments of error: 1. the admission of the testimony of Henry Reece, the payee, to prove the forged endorsement; 2, the giving of an instruction numbered 4 for the State; 3, the refusing of an instruction in the nature of a demurrer to the evidence asked by the appellant.
I. The competency of the testimony of Henry Reece to the forgery of the endorsement of his name on the back of the check is challenged on the ground that the information is general in its terms and contains no averment of the forging of the endorsement. This contention is based upon the assumption that the check, aside from the endorsement, was genuine. The proof shows this assumption to be without foundation. This conclusion agrees with the facts, and none of the circumstances connected therewith have the effect to lessen its probative force. On the contrary, all of the evidence, as will more fully appear in discussing its sufficiency, tends to show that the check was, as charged, without a semblance of genuineness. The rule is well established that where an entire instrument is alleged to have been forged, the charge is sustained by proof of the forgery of any material part of same. [2 East, Pleas of the Crown, 979; Comm. v. Butterick, 100 Mass. l. c. 18; State v. Gardiner, 23 N.C. 27; State v. Weaver, 35 N.C. 491.]
There need be little room for a discussion of the question as to whether the endorsement of Henry Reece's name on the check rendered it a material part of same. He was the payee named therein. Under the law of negotiable instruments, the endorsement of the payee's name thereon renders him liable to the holder of the paper for its payment. In the absence of the endorsement the prime essential to enable the holder to convert the check into cash would be absent. After the endorsement, the holder, if the check was genuine, could have looked to Reece for its payment. It will be seen that the effect of the endorsement was to give a value to the check which enabled it to be readily converted into cash, which it did not theretofore possess. This value was limited only by the solvency of those liable for its payment. [Saucier v. State, 102 Miss. 647, 59 So. 858.]
Aside from the assumption as to the genuineness of the check, it is contended that the endorsement is a collateral matter and that it should have been specifically alleged as the offense and proved as laid. It will be seen from an examination of the English case (Rex v. Birkett, Russ. & R. 251), here relied on to sustain this contention, that the rule as thus announced was held not to apply except to endorsements on genuine bills of exchange. Where the rule is read with discrimination, it will be found thus limited in Kelly's Criminal Law (3 Ed.) sec. 801. Its further extension here, as sought to be made by the appellant, is unwarranted.
While it is true that forgery, as defined by our law, is a statutory crime and a charge therefor should fall within the statutory definition, the rule is well established that the making and uttering of a forged endorsement on a negotiable instrument of the name of the payee is held to be a forgery, although not in terms so classified in either Section 3441 or 3449, Revised Statutes 1919; and evidence of such endorsement may be admitted although not alleged in the indictment to prove the forgery of the instrument.
In harmony with this rule is our holding in State v Carragin, 210 Mo. l. c. 351, 109 S.W. 553, in which it was said: "As to the last assignment of error, that the endorsement was not such an 'instrument or writing' as is contemplated by the statute denouncing forgery, we think that an endorsement comes clearly within the letter and the spirit of our statute" (now Sec. 3446, R.S. 1919) "which provides that 'every instrument partly printed and partly written, or wholly...
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