State v. Eaton
| Decision Date | 04 February 1902 |
| Parties | THE STATE v. EATON, Appellant |
| Court | Missouri Supreme Court |
Appeal from Howard Circuit Court. -- Hon. John A. Hockaday, Judge.
Affirmed.
O. S Barton for appellant.
(1) The trial court should have sustained defendant's demurrer to the evidence, because there was an entire failure of evidence to show the guilt of defendant under either count of the indictment. Under the first count, defendant is charged with feloniously forging and counterfeiting and falsely making a certain check; the testimony of witness Howard shows that the check introduced in evidence was the check given by Howard to defendant, that it still bore Howard's signature, but that it had been altered by the amount being raised from $ 13 to $ 19; there was no evidence of any forgery or counterfeiting or falsely making a counterfeit check, but the evidence showed that a check had been altered. State v Fischer, 58 Mo. 256. (2) Under the second count the two witnesses, Myer and Sexton, could not identify defendant as the party who passed or uttered the check. The testimony of these witnesses is conflicting in a very material point. The second count charges defendant with passing the check to Myer. The witness, Myer, says he sold the party the goods took the check and gave him the money in change; the witness, Sexton, says he is the party that sold the goods and took the check, and gave defendant the money in change. If Sexton is to be believed, then the party did not pass and utter a check to one Chas. Myer. For these reasons the instruction asked for by defendant in the nature of a demurrer to the evidence should have been sustained. "The judgment of the trial court will be reversed when there is an entire failure of the evidence to show the guilt of defendant." State v. Mahan, 138 Mo. 112; State v. Nettles, 153 Mo. 464. (3) The first instruction on the behalf of the State is erroneous, in that it submits to the jury an issue not raised by the indictment. The question of consideration for the uttering or exchange of the checks is not raised by the indictment but is presented for the consideration of the jury by this instruction. "It is error for the court to try to cure an omission of an indictment by instruction." State v. Smith, 119 Mo. 439; State v. Warren, 57 Mo.App. 502; State v. Hesseltine, 130 Mo. 468. If the second count is drawn under section 2002, Revised Statutes 1899, then said instruction is fatally defective in not submitting to the jury the question as to whether or not the defendant gave the check "with the intent to have the same altered or passed." State v. Hesseltine, 130 Mo. 468. (4) The first instruction asked for by defendant should have been given, for the evidence shows that witness, Myer, the party alleged in the indictment as the one to whom the check was uttered and passed, was simply in the employ of H. & S. Loeb & Co., and that the goods and the money given in exchange for the check was the property of H. & S. Loeb & Co., and not of Myer. State v. Samuels, 144 Mo. 58. (5) The trial court should have sustained defendant's motion in arrest of judgment because the first count in the indictment is bad, because it does not state in what manner the check was altered, forged or made false, nor does it state what the check was before it was altered, nor in what the alteration consisted. "An indictment for forgery in altering an instrument which leaves to conjecture what the instrument was before its alteration, and also in what the alteration consisted, is fatally defective." State v. Fischer, 58 Mo. 256. The second count of the indictment is defective because it was evidently drawn under section 2002, Revised Statutes 1899. The statute describes the offense of exchanging, passing a forged check, and this count fails to allege that the check was passed for a "consideration," or "for the purpose of having the same altered or passed." Both of these allegations are essential to an indictment under this section. State v. Hesseltine, 130 Mo. 468. That this indictment was drawn under section 2002, Revised Statutes 1899, is evident from the fact that the first instruction submits to the jury the question as to whether or not the check was passed for a "consideration." This is the only section under which the defendant could have been indicted for exchanging a forged check for goods and money. "It is necessary that an indictment for a statutory crime should aver every essential fact constituting a crime." State v. Kirby, 115 Mo. 440; State v. Hesseltine, 130 Mo. 468.
Edward C. Crow, Attorney-General, and Jerry M. Jeffries, for the State.
The jury are the sole judges of the weight of evidence and the credibility of the witnesses and trial courts will not disturb the verdict of the jury where there is any evidence to substantiate that verdict. Gannon v. Laclede Gas Light Company, 145 Mo. 502; State v. Hudspeth, 150 Mo. 12; State v. Sprague, 149 Mo. 409. The record shows that the trial court admitted no evidence over the objection of the defendant, nor did the trial court exclude any evidence offered by the defendant. Hence, in the introduction of the evidence no error was committed. Kansas City v. Marshall Oil Co., 140 Mo. 458. The defendant should except to the failure of the court to instruct on all the law in the case. Appellant having failed to do this, even though the trial court had not instructed on all the law, there was no error. State v. Barton, 142 Mo. 450. The instructions given declared all the law in the case and are fully substantiated by the evidence. Both counts of the indictment are sufficient. One is evidently drawn under section 2001, Revised Statutes 1899, and the other under section 2014. These statutes charge distinct and separate crimes, and under them and the evidence the instruction given properly declared the law. State v. Williams, 152 Mo. 115; State v. Mills, 146 Mo. 195; State v. Webster, 152 Mo. 87. Instruction 1 for appellant does not properly declare the law and it was properly overruled. All the law involved in the case was covered by the instruction given on the part of the State. State v. Patterson, 116 Mo. 505. The instructions are sufficient and properly declare the law. State v. Fitzsimmons, 30 Mo. 236; State v. Phillips, 78 Mo. 49; State v. Vincent, 91 Mo. 662.
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 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 sometime been in the service of one Joseph Howard, and Howard being indebted to him on that account on June 30, 1900, gave him a check signed by himself on the Payne & Williams Bank, a banking corporation doing business in Fayette, Missouri, for the sum of thirteen dollars. 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 as therein written to $ 19. 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 one dollar's 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 Myer, the manager of the store, and the party to whom the second count of the indictment charges the defendant...
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