State v. Chamberlain

• Citation: 89 Mo. 129
• Parties: STATE v. CHAMBERLAIN.
• Decision Date: 07 June 1886
• Court: Missouri Supreme Court

89 Mo. 129

STATE

v.CHAMBERLAIN.

Supreme Court of Missouri.

June 7, 1886.

Appeal from Sullivan circuit court.

Indictment and conviction for the forgery of promissory notes.

The Attorney General, for the State. John P. Butler andA. W. Mullins, for appellant, M. L. Chamberlain.

SHERWOOD, J.

The defendant was convicted on the second count of an indictment, which is as follows: “And the great jurors aforesaid, upon their oath aforesaid, do further present that M. L. Chamberlain, on the seventeenth day of September, 1879, at the county of Sullivan, and state of Missouri, did unlawfully, fraudulently, and feloniously utter as true and genuine, to one Warren McCullough, certain false, forged, and counterfeit promissory notes, he, the said M. L. Chamberlain, then and there knowing the said promissory notes to be false, forged, and counterfeited, of the purport following, to wit: A note of one hundred dollars, purporting to be made by Thomas Montgomery, which said false, forged, and counterfeited promissory note is of the purport following: Note of one hundred dollars, executed and signed by Thomas Montgomery, dated ----- day of March, 1879, payable nine months after date to J. C. Willard, bearing ten per cent. interest from date. A note of three hundred dollars, purporting to be made by Daniel Baldridge, which said false, forged, and counterfeited promissory note is of the purport following: Note of three hundred dollars, executed and signed by Daniel Baldridge, dated ----- of March, 1879, payable nine months after date to J. C. Willard, bearing ten per cent. interest from date. A note of one hundred dollars, purporting to be made by M. McCabe, which said false, forged, and counterfeited promissory note is of the purport following: Note of one hundred dollars, executed and signed by M. McCabe, dated ----- of March, 1879, payable nine months after date to J. C. Willard, bearing ten per cent. interest from date. A note of two hundred and fifty dollars, purporting to be made by Robert Dalzell, which said false, forged, and counterfeited promissory note is of the purport following: Note of two hundred and fifty dollars, executed and signed by Robert Dalzell, dated ----- day of March, 1879, payable nine months after date to J. C. Willard, bearing ten per cent. interest from date, with a credit of one hundred dollars on same, and signed by Robert Dalzell, making his mark;--with intent unlawfully, fraudulently, and feloniously to injure and defraud, against the peace and dignity of the state.”

1. The indictment is in poor shape, and at common law would doubtless be held insufficient, because its allegations in the purport clause are clearly repugnant; for if the notes were “executed and signed by Thomas Montgomery,” then, of consequence, it could not have been forged by the defendant. Carter's Case, 2 East, P. C. 985; 2 Bish. Crim. Proc. § 417: 1 Bish. Crim. Proc. § 489 et seq.; 1 Chit. Crim. Law, 231; State v. Flint, 62 Mo. 393; Kelley, Crim. Law, § 199. But, notwithstanding this, our statute covers this otherwise fatal defect; for it provides that “no indictment or information shall be deemed invalid, nor shall the trial, judgment, or other proceedings thereon be stayed, arrested, or in any manner affected,” etc.; and, after specifying many instances where an indictment shall not be held invalid, proceeds further to declare: “Nor for any surplusage or repugnant allegation, when there is sufficient matter alleged to indicate the crime and person charged, * * * nor for any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant on the merits.” Section 1821. With such a broad statute in view, the indictment here, though lamentably repugnant, must be held as valid to...