State v. Eaton

• Decision Date: 04 February 1902
• Citation: 66 S.W. 539,166 Mo. 575
• Parties: STATE v. EATON.
• Court: Missouri Supreme Court

66 S.W. 539

166 Mo. 575

STATE v. EATON.

Supreme Court of Missouri, Division No. 2.

February 4, 1902.

FORGERY — INDICTMENT AND PROOF — VARIANCE — SUFFICIENCY — DEMURRER TO EVIDENCE.

1. Under Rev. St. 1899, § 2001, providing that "every person who shall forge or counterfeit, or falsely make or alter * * * any bill of exchange, draft, check, certificate of deposit, * * * shall be guilty of forgery," proof of a fraudulent alteration of a check by defendant will support an indictment charging him with having forged, counterfeited, and falsely made the same.

2. In a prosecution of defendant, a colored man, for fraudulently altering or passing an altered check given to him by a third person, the manager of a store and the party on whom the indictment alleged the check was passed testified that a negro brought the check back to the cashier's desk and asked him to cash it; that he sold the party certain goods, and gave him cash for the balance; that he was not certain defendant was the man, but that he looked like him. A clerk testified that the negro presented the check to him; that he sold the goods and gave him the money; that he could not tell whether defendant was the man or not. Held, a demurrer to the evidence was properly overruled; the case being sufficient to go to the jury.

3. Rev. St. 1899, § 2002, provides that any person who shall knowingly sell for any consideration a forged check shall be guilty of forgery. Section 2003 declares that any person who knowingly has in his possession a forged check, with intent to utter the same, shall be guilty of forgery. Held, that an indictment charging defendant with having forged, counterfeited, and falsely made a check, etc., was based on section 2003, and not section 2002, and therefore need not allege that the check was uttered for a consideration.

4. Where an indictment charges that defendant passed a forged check on a third person with intent to defraud, he may be convicted, though the proof shows that the third person was in the employ of another, and that the goods and money given in exchange belonged to the employer; the indictment not charging an intent to defraud any particular person.

Appeal from circuit court, Howard county; Jno. A. Hockaday, Judge.

Erwin Eaton was convicted of crime, and appeals. Affirmed.

The first instruction requested by defendant is as follows: "Before you can convict the defendant upon the second count of the indictment, you must believe and find from the evidence, beyond a reasonable doubt, that the defendant passed the check on said Charles Meyer with the intent to defraud the said Charles Meyer; and if you believe and find from the evidence that the defendant gave the check, as alleged in the indictment, to said Charles Meyer, in exchange for money, goods, or other property belonging to the firm of H. & S. Loeb & Co., and not to the said Meyer, then you should acquit the defendant under the second count of the indictment."

O. S. Barton, for appellant. The Attorney General and Jerry M. Jeffries, for the State.

BURGESS, J.

Under an indictment containing two counts, — one charging defendant with having forged, counterfeited, and falsely made a certain check which purported to have been made by Joseph Howard, and the other charging him with passing, uttering, and publishing as true the same forged check, — defendant was convicted on both counts, and his punishment upon each count fixed at five years' imprisonment in the penitentiary. He appeals.

The salient facts, as disclosed by the record, are substantially as follows: The defendant, a negro, had for some time been in the service of one Joseph Howard; and Howard, being indebted to him on that account, on the 30th day of June, 1900, gave him a check, signed by himself, on the Payne & Williams Bank, a banking corporation doing business in Fayette, Mo., for the sum of $13. The check was thereafter altered, without the knowledge or consent of Howard, by changing the word "thirteen," where it was written in the check, to the word "nineteen," and the figures "$13.00," as therein written, to "19.00." The remainder of the check was in the handwriting of Howard, as originally written. On the same evening of the date of the check, it was presented at the store of H. & S. Loeb & Co., in Fayette, by a colored man, and exchanged for $1 worth of goods and $18 in cash. As to who passed the check and as to what occurred in the store, the testimony of the witnesses for the state was conflicting. Charles Meyer, the manager of the store, and the party to whom the second count of the indictment charges the defendant of uttering and passing the check, testified that a...