State v. Cordray

• Decision Date: 04 December 1906
• Citation: 200 Mo. 29,98 S.W. 1
• Parties: STATE v. CORDRAY.
• Court: Missouri Supreme Court

98 S.W. 1

200 Mo. 29

STATE v. CORDRAY.

Supreme Court of Missouri, Division No. 2.

December 4, 1906.

1. CRIMINAL LAW — APPEAL — REVIEW — ABSENCE OF BILL OF EXCEPTIONS.

In the absence of a bill of exceptions in a criminal case, an appeal presents nothing for review except the record proper.

2. FORGERY—ELEMENTS OF OFFENSE—INTENT TO DEFRAUD.

Intent to defraud is an essential element of the crime of forgery, and must be averred and proved.

3. SAME—INSTRUMENT FORGED—VALIDITY.

An instrument claimed to have been forged was described in the indictment first as "a lease," but no length of time was fixed for it to run, and no consideration therefor was expressed. It recited that it was for "____ months," and provided that "on leaving the order for said goods ____ dollars on the delivery of the same, ____ dollars, and every week thereafter the sum of ____ dollars," etc. It purported to be for the rent of household goods and jewelry, which were nowhere set forth or included in the covenants or agreements contained in the instrument. It was also silent as to any mortgage debt, and while it referred to household furniture, wearing apparel, carpets, etc., there was nothing to identify the same. Held, that the instrument was void on its face either as a lease, chattel mortgage, or assignment, and was therefore not the subject of forgery.

Appeal from Circuit Court, Buchanan County; Ben J. Casteel, Judge.

Frank A. Cordray was convicted of forgery, and he appeals. Reversed. Defendant discharged.

The Attorney General and N. T. Gentry, for the State.

GANTT, J.

On June 23, 1905, the grand jury of Buchanan county returned an indictment against the defendant, charging him with forgery in the third degree, to wit, the unlawfully making and forging a certain lease and chattel mortgage and assignment, purporting to be an act of one J. Herety, to the Union Mercantile Company, with intent to defraud, etc. The defendant was arrested and duly arraigned and entered his plea of not guilty, and was tried and convicted at the September term, 1905, of the criminal court of Buchanan county. In due time he filed his motion for a new trial, which was taken up, heard, and overruled, and thereupon he filed a motion in arrest of judgment, which was also overruled, and the defendant sentenced to the penitentiary for a term of two years in accordance with the verdict of the jury. Leave was given the defendant to file a bill of exceptions during the next term of the criminal court of said county, but he did not avail himself of that privilege, and hence this appeal presents nothing for review by this court except the record proper. The defendant is not represented in this court by counsel, but in obedience to the statute we have examined the record proper.

There is, perhaps, no proposition in criminal law upon which there is more unanimity of opinion among text-writers and the courts of last resort than that pertaining to the essentials of what is necessary to constitute an indictable forgery, and that one of these essentials is that the alleged forged instrument shall possess some apparent legal efficacy. Thus Mr. Bishop, in his Criminal Law (vol. 2, § 533), says: "To constitute an indictable forgery, it is not alone sufficient that there be a writing and that the writing be false. It must, also, be such as, if true, would be of some legal efficacy, real or apparent, since otherwise it has no legal tendency to defraud." Blackstone defines forgery to be "the fraudulent making or alteration of a writing to the prejudice of another man's right." In 13 Am. & Eng. Enc. Law (2d Ed.) p. 1082, it is said: "Forgery is the false making or alteration with fraudulent intent of any writing by which the party committing the act may wrongfully obtain something of value to the prejudice of another's rights,...