State v. Fay

• Decision Date: 31 October 1877
• Citation: 65 Mo. 490
• Parties: THE STATE v. FAY, APPELLANT.
• Court: Missouri Supreme Court

65 Mo. 490

THE STATE

v.FAY, APPELLANT.

Supreme Court of Missouri.

October Term, 1877.

Appeal from Audrain Circuit Court.--HON. G. PORTER, Judge.

W. O. Forrist, for appellant.

The note should not have been admitted in evidence, because it is altogether a different instrument from that described in the indictment, and purporting to create altogether a different pecuniary liability from that named in the indictment. The liability named in the indictment was sixty dollars in sixty days, against Abraham Turner and James C. Orr. The paper offered in evidence purported to create a liability for $60, payable in sixty days, at a specified bank with interest at ten per cent. to be compounded. There was a fatal variance between the allegation and the evidence offered. Our statute of Jeofails, Sec. 27, p. 1090, and Sec. 28, p. 1091, 2 Wag. Stat. Ed. 1872, cannot help the matter. Sec. 28, but obviates the necessity of “copy or fac simile” of the forged instrument, in an indictment. Sec. 27 has no reference to the point made.

J. L. Smith, Attorney General, for the State.

When the State offered the note in evidence the defendant objected because it purported to be signed by “J. C. Orr” and the note mentioned in the indictment was alleged to have been signed “James C. Orr,” and because the same did not purport to create a liability for $60, but for $60 and interest. There is no force in these objections The indictment did not pretend to give the tenor of the instrument, and this, taken together with the fact that the State proved that “James C. Orr,” “Jas. C. Orr” and “J. C. Orr” were one and the same person, was sufficient to justify the court below in admitting said note. Wag. Stat. 517 § 41; Ib. 1091 §§ 28, 29, 30.

NORTON, J.

The defendant was indicted at the October term, 1875, of the Audrain county circuit court, for forgery in the third degree. He was put upon his trial and convicted, and his punishment assessed to two years imprisonment in the penitentiary. To reverse the judgment the defendant brings the cause here by appeal, and urges as a reason for reversal the insufficiency of the indictment and the action of the trial court in admitting illegal evidence and in giving and refusing instructions. The indictment is framed on sec. 16 1 Wag. Stat. 470, which is as follows: Every person, who, with intent to injure or defraud, shall falsely make, alter, forge or counterfeit any instrument of writing, being or purporting to be the act of another by which any pecuniary demand or obligation shall be or purport to be transferred, created, increased, discharged or diminished, or by which any rights or property whatsoever shall be or purport to be transferred, conveyed, discharged, increased or in any manner affected, &c., shall on conviction be adjudged guilty of forgery in the third degree. The indictment in question charges the offense created by this statute in the words of the statute, and alleges that defendant at, &c., with the intent to injure and defraud, did feloniously and falsely make and forge a certain instrument or writing, to-wit: one promissory note dated, &c., purporting to be the act of another, to-wit: Abram Turner & James C. Orr, by which said falsely made instrument or writing a pecuniary obligation purported to be created, to-wit: the obligation by and upon the said Abram Turner & James C. Orr to pay him, the said Augustus Fay, the sum of sixty dollars sixty days after the date of said instrument or writing, by feloniously signing the names of the said Abram Turner & James C. Orr to said instrument or writing, and by selling said note to James Bush, and by endorsement and delivery. In support of the charge the prosecuting attorney offered in evidence the following writing: “Columbia, Mo., April 16th, 1875, $60.00. Sixty days after date I promise to pay Augustus Fay, or order, sixty dollars, for value received, at the Exchange National Bank of...