State v. Collins

• Decision Date: 23 February 1923
• Docket Number: No. 23824.,23824.
• Citation: 297 Mo. 257,248 S.W. 599
• Parties: STATE v. COLLINS.
• Court: Missouri Supreme Court

248 S.W. 599

297 Mo. 257

STATE v. COLLINS.

No. 23824.

Supreme Court of Missouri, Division No. 2.

February 23, 1923.

Appeal from Circuit Court, Pike County; Edgar B. Woolfolk, Judge.

Lulu M. Collins was convicted of forgery in the third degree, and she appeals. Reversed and remanded.

C. E. Cowherd, of Louisiana, Mo., and J.

H. Haley, of Bowling Green, for appellant. Jesse W. Barrett, Atty. Gen., and J. Henry Caruthers, Asst. Atty. Gen., for the State.

WHITE, J.

On the 20th day of January, 1922, in the circuit court of Pike county, the appellant was found guilty of forgery in the third degree, and her punishment assessed at three years' imprisonment in the penitentiary.

Miss Collins, for many years a teacher, was at one time president of Pike College, in Bowling Green. Subsequently she was admitted to the bar, and was a practicing attorney at the time the information in this case was lodged against her, March 26, 1921. In the month of September, 1920, she undertook to negotiate a loan for one Mrs. Ida Burrus. She produced a mortgage and a note for $500, with the signatures of Daniel Grimes, a colored man, and Sarah Smith, his sister, whose name was Randall at the time of the trial. The defendant told Mrs. Burrus that she was attorney for Daniel Grimes. She had in fact represented Daniel Grimes in some business. She had instituted in the circuit court a suit for him affecting the title to 40 acres of land in which his sister, Sarah Smith, was interested. That suit was pending at the time of the trial.

The name of the payee was not written in the note. Miss Collins inserted the name of Mrs. Burrus, and told Yrs. Burrus that Grimes had authorized her to insert the name. Mrs. Burrus took the note, and at that time gave Miss Collins a check for $300, and later she gave her a cheek for $100. Miss Collins made some statement about Grimes desiring the money to purchase 40 acres of land, and represented that he had certain hogs and cows, and had plenty of property, and stood well in the community. The note was not paid at the expiration of 90 days, when Mrs. Burrus thought it was due, and after several attempts to collect it she went to see Grimes and his sister. They testified at the trial that they never executed the note. There was other evidence introduced, but the above is sufficient to show the general trend and effect of the facts testified to.

I. The information was in two counts. The first count charged forgery of the Grimes note, and the second the uttering and selling of that note. The defendant, at the beginning of the case, before evidence was introduced, filed a motion to require the state to elect on which count it would proceed to trial. This motion was overruled. At the close of the evidence offered by the state, the defendant again filed a motion asking the court to require the state to elect upon which count it would stand, and the state elected to stand or the second count. The defendant then moved the court to require the state to elect upon which of the two offenses charged in the second count it would proceed to trial. The court overruled this motion, stating that the second count charged only one offense. These several rulings of the court are assigned as errors.

There was no error in overruling the motion filed before evidence was introduced. The election between the two counts was entirely sufficient after the evidence was introduced. It is unnecessary to elucidate the doctrine upon which that ruling is held to be correct, further than to cite cases in its support. State v. Daubert, 42 Mo. 242; State v. Young, 266 Mo. loc. cit. 732, 183 S. W. 305; State v. Christian, 253 Mo. loc. cit. 393, 394, 161 S. W. 736.

II. A different question arises in determining the propriety of the ruling in regard to the different causes of action stated in the second count. Three questions present themselves for solution: (a) Did the second count state two causes of action? (b) Was the motion to elect the defendant's proper method to reach that infirmity? and (c) Was the defendant harmed by the ruling of the court?

The second count is as follows:

"Second Count. And the said Rufus L. Higginbotham, prosecuting attorney within and for the county of Pike, in the, state of Missouri, under his oath of office and upon his information, knowledge, and belief, files this his second count, and charges the facts to be that at the county of Pike, in the state of Missouri, on or about the 16th day of September, A. D. 1920, one Lulu M. Collins did then and there unlawfully, willfully, fraudulently, and feloniously sell, utter, pass, exchange, and deliver to one Mrs. Ida Burrus, for a consideration, a certain forged, counterfeited, and falsely made instrument in writing, to wit, a promissory note, purporting to be the act of, and purporting to have been made and signed by, one Sarah Smith and one Daniel Grimes, by which a pecuniary demand and obligation for the payment of five hundred dollars ($500.00), by said Sarah Smith and the said Daniel Grimes, to the "order of one Mrs. Ida Burrus, ninety days after said 10th day of September, 1920, purported to be created, which said forged, counterfeited, and falsely made instrument and promissory note is of the tenor following, that is to say:

                "`$500.00               September 16, 1920
                

"`Ninety ________ after date we promise to pay to the order of Mrs. Ida Burrus five hundred dollars, for value received, negotiable and payable without defalcation or discount, and with interest from date at the rate of 8 per cent. per annum, and if the interest be not paid annually to become as principal and bear the same rate of interest. Sarah Smith.

                                      his
                              "`Daniel X Grimes
                                      mark
                "`Witness: F. A. Davis
                     "`[U. S. Documentary 2 Cents.]
                    "`No.      19-16-1920.          R
                                "`LMC'
                

—unlawfully, willfully, fraudulently, and feloniously did sell, utter, pass, exchange, and deliver and publish as true, to one Mrs. Ida Burrus, for a consideration, with the intent then and there to have the same passed, and with the intent then and there and thereby her, the said Mrs. Ida Burrus, to injure, cheat, and defraud, and she, the said Lulu M. Collins, then and there well knowing the said instrument and note to be forged, counterfeited and falsely made; and against the peace and dignity of the state. Rufus L. Higginbotham,

                        "Prosecuting Attorney within and for
                            the County of Pike, Missouri."
                

Counsel for appellants in their arguments and brief say that this count charges three offenses: One under section 3439, one under section 3440, and one under section 3441, R. S. 1919. There is no trouble in determining that section 3439 cannot be applied to any of the allegations of the information, because that section defines the offense of having in possession a forged instrument with intent to defraud by uttering the same.

Sections 3440 and 3441, for convenience, we copy as follows:

"Sec. 3440. Selling Forged. Instrument to Have the Same Passed, Fourth Degree.—Every person who shall sell, exchange or deliver, or offer to sell, exchange or deliver, for any consideration, any falsely altered, forged or counterfeited instrument or writing, the forgery of which is declared punishable, except as in the last section is excepted, knowing the same to be forged, counterfeited or falsely altered, with the intention to have the same uttered or passed, shall, upon conviction, be adjudged guilty of forgery in the fourth degree."

"Sec. 3441. Uttering Forged Instrument.— Every person who, with intent to"defraud, shall pass, utter or publish, or offer or attempt to pass, utter or publish as true any forged, counterfeited or falsely altered instrument or writing, or any counterfeit or any imitation of any gold or silver coin, the altering, forging or counterfeiting of which is hereinbefore declared to be an offense, knowing such instrument, writing or coin to be altered, forged or counterfeited, shall, upon conviction, be adjudged guilty of forgery in the same degree as hereinbefore declared for the forging, altering or counterfeiting the instrument, writing or coin so passed, uttered or published, or offered or attempted to be passed, uttered or published."

Section 3440 declares that it is forgery in the fourth degree "to sell, exchange or deliver, for any consideration" any forged writing (with certain exceptions) "with the intention to have the same uttered or passed." Section 3441 declares that any person who, "with intent to defraud, shall pass, utter or publish * * * as true" any forged instrument, "knowing such instrument * * * to be * * * forged" shall be guilty of forgery in the same degree as hereinbefore declared for "forging, altering or counterfeiting the instrument."...