State v. Carragin

• Decision Date: 17 March 1908
• Citation: 109 S.W. 553,210 Mo. 351
• Parties: STATE v. CARRAGIN.
• Court: Missouri Supreme Court

109 S.W. 553

210 Mo. 351

STATE v. CARRAGIN.

Supreme Court of Missouri, Division No. 2.

March 17, 1908.

1. INDICTMENT AND INFORMATION—JOINDER OF COUNTS—ELECTION.

Where one count of an information charges forgery, and another charges uttering such forgery, it is error not to require the prosecuting attorney at the close of the evidence to elect upon which count he will ask a conviction.

2. FORGERY—VARIANCE.

In a prosecution for forging an indorsement on a note, where the information did not allege or set out defendant's indorsement on the note, but the note offered in evidence bore such indorsement, the omission is not reversible error, where the trial court did not find the variance material and prejudicial, under Rev. St. 1899, § 2534 (Ann. St. 1906, p. 1508), providing that a variance in the name or description of any matter described shall not be ground for an acquittal, unless the court shall find such variance prejudicial to defendant.

3. FORGERY—ELEMENTS OF OFFENSE—NATURE OF INSTRUMENT — "WRITING" — "WRITTEN INSTRUMENT."

An indorsement on a note is within the letter and spirit of Rev. St. 1899, § 2019 (Ann. St. 1906, p. 1344), providing that every instrument partly printed and partly written, or wholly printed with a written signature thereto, and every signature of an individual, firm, or corporate body, and every writing purporting to be such signature, shall be deemed a writing and a written instrument within the meaning of the act.

Appeal from St. Louis Circuit Court; Wm. M. Kinsey, Judge.

James B. Carragin was convicted of forgery, and appeals. Reversed and remanded.

Thos. B. Harvey, for appellant. Attorney General and Rush C. Lake, for the State.

GANTT, J.

At the December term, 1905, the circuit attorney of the city of St. Louis filed an information, duly verified, in two counts, charging the defendant in the first count with forgery, and in the second count with uttering said forged paper. The substantive part of both counts is as follows: "That James B. Carragin on or about the 9th day of April in the year of our Lord 1903, at the city of St. Louis aforesaid, feloniously and willfully did forge, counterfeit, and falsely make a certain false, forged, and counterfeit indorsement upon the back of a certain promissory note by which a pecuniary demand, obligation, right, and claim to money purported to be conveyed, transferred, and created, said indorsement purporting to be made by one J. B. Baker, which said false, forged, and counterfeit indorsement was so forged, counterfeited, and falsely made upon a promissory note of the tenor following; that is to say: `$75.00. St. Louis, Mo., April 9th, 1903. Thirty days after date I promise to pay to the order of Jas. B. Carragien seventy-five 00/00 dollars, for value received at the International Bank of St. Louis, with interest from date at the rate of eight per cent. per annum. Jas. B. Carragin.' And which said false, forged, and counterfeit indorsement on the back of said promissory note is of the tenor following; that is to say: `J. B. Baker'—with intent thereby then and there feloniously to injure and defraud, against the peace and dignity of the state. And the said Richard M. Johnson, assistant circuit attorney as aforesaid, upon his oath aforesaid, further information makes that James B. Carragin on or about the 9th day of April, 1903, at the city of St. Louis aforesaid, unlawfully and feloniously had in his custody and possession a certain false, forged, and counterfeit indorsement upon the back of a certain promissory note, and by which said false, forged, and counterfeit indorsement as aforesaid a pecuniary demand, obligation, right, and claim to money purported to be conveyed, transferred, and created. Said indorsement purported to be made by one J. B. Baker, and which said false, forged, and counterfeit indorsement was so forged and counterfeited and falsely made upon a promissory note of the tenor following; that is to say: `$75,00 St. Louis, Mo. April 9th, 1903. Thirty days after date I promise to pay to the order of Jas. B. Carragien seventy-five 00/00 dollars, for value received at the International Bank of St. Louis, with interest from date at the rate of eight per cent. per annum. Jas. B. Carragin.' And which said false, forged, and counterfeit indorsement on the back of said promissory note is of the tenor following; that is to say: `J. B. Baker'—and that the said James B. Carragin did afterwards, to wit, on or about said 9th day of April, 1903, at the city of St. Louis aforesaid, state aforesaid, unlawfully and feloniously, with intent to injure and defraud, pass, utter, and publish as true the said falsely made, forged, and counterfeit indorsement upon the said promissory note to John W. Benstein, he, the said James B. Carragin, then and there well knowing the said indorsement upon said promissory note to be falsely made, forged, and counterfeited, against the peace and dignity of the state."

The evidence on the part of the state tended to prove that one Dr. Rice and John W. Benstein and the defendant were promoting a World's Fair concession in 1904; all owning stock, and being interested therein. Benstein had loaned the defendant money several times until an indebtedness of several hundred dollars existed in his favor against defendant. Defendant made an application for a loan of $75, and Benstein agreed to loan it to him if he would give additional security, and the defendant said that one J. B. Baker would sign the note. It appears that Benstein then drew the note as set out in the information, and Carragin, the defendant, signed it, and took the note to get the additional name on it, and a few hours later returned with the indorsement thereon of J. B. Baker. Thereupon Benstein let him have the $75, and took the note and afterwards deposited it with the International Bank for collection. When it was due it was protested for nonpayment. Baker, who was away from St. Louis at the time the note was protested, testified that he promptly wrote the note, and the bank that he had not signed the note, and when he saw Benstein notified him to the same effect. Benstein had never met Baker prior to the execution of the note, but knew of the Baker family, and understood that they were people of standing and reputation, and he testified that upon the strength of that indorsement he took the note and let the defendant have the money. Benstein notified Carragin that Baker denied his signature on the note, and defendant agreed to take it up. In March, 1904, Dr. Rice took from Benstein, among others, this note. Dr. Rice is the prosecuting witness in this case. The defendant admitted the execution of the note by himself, and his own indorsement of it and its delivery to Benstein, but denies that he signed Baker's name to it. He explained that after he received the note from Benstein, he took it to Lippe's restaurant in St. Louis, expecting to find Baker, but missed him, and turned it over to one Neilson, who was to wait for Baker and have Baker sign it, and when he returned, Neilson gave him the note with the signature indorsed on it, "J. B. Baker," and he then delivered it to Benstein. Neilson did not testify in the case.

At the close of the state's case the defendant moved the court to direct the jury to acquit him because the note offered in evidence by the state was not the note purported to be set forth according to the tenor of the information, and because a writing such as set forth in the information could not be the subject of forgery unless the name of the maker and payee, they being one and the same person, be indorsed on the back of said writing, and unless indorsed the paper was a nullity, as it imposed no pecuniary liability upon any one, and on the ground that the variance between the writing set out in the information and that introduced in evidence was fatal. The court overruled this motion, and defendant excepted. The court charged the jury that in the first count of the information defendant was charged with the forgery of an indorsement of the note therein set out, and in the second count he was charged with passing, uttering, and publishing as true the forged indorsement. The court then instructed the jury that, if at any time within three years next before the filing of the information, the defendant knowingly and willfully did forge, counterfeit, and falsely make an indorsement of the name of J. B. Baker on the instrument described in the said first count, and that said indorsement purported to be the act of said J. B. Baker, and purported to be the written promise and undertaking of said Baker to pay the sum of $75 to the order of J. B. Carragin 30 days after the 9th day of April, 1903, for value received, and that defendant knowingly and willfully forged, counterfeited, and falsely made said indorsement with the intent then and there and thereby to cheat, injure, and defraud, they would find him guilty of forgery in the third degree and assess his punishment at imprisonment in the penitentiary for a term of not less than two years or more then seven years, and unless they so believe from the evidence they would acquit him from the charge of forgery contained in the said first count. The court further instructed the jury that, if at any time within three years next before the filing of the information the defendant knowingly and willfully did pass, utter, and publish as true to one John W. Benstein the instrument set out in the second count of said information, and that said instrument had indorsed thereon the name of J. B. Baker, which indorsement purported to be the act of said Baker, and that the said indorsement was not the true and genuine act of said Baker, but was at the time forged, counterfeited, and falsely made, and the defendant at the time knew said indorsement was forged, counterfeited, and falsely made, and that he so passed, uttered, and published the same as true, with the intent then and...