State v. Fisher

• Decision Date: 31 October 1877
• Parties: THE STATE, APPELLANT v. FISHER.
• Court: Missouri Supreme Court

65 Mo. 437

THE STATE, APPELLANT

v.FISHER.

Supreme Court of Missouri.

October Term, 1877.

Appeal from Dunklin Circuit Court.

HON. R. P. OWEN, Judge.

J. L. Smith, Atty. Gen. for the State, cited Wag. Stat. 1091 §§ 28, 29, 30; Paige v. People, 3 Abb., N. Y. Ct. App. L. 439 and cases there cited

SHERWOOD, C. J.

Indictment under section 1, C. 1, W. S. 467, for forging a deed. Indictment quashed and State appeals

The bill charges: “That Joseph Fisher, on the twelfth day of May, 1874, at Kennett in the county of Dunklin aforesaid, did unlawfully and feloniously forge a certain deed, purporting to be the act of James Marshfield, by which a right and interest in certain real property, which in said deed purports to lie and be situate in the county of Dunklin, State of Missouri, and which in said deed was described as follows, to-wit, (giving description), containing in all one hundred and one thousand, four hundred (101,400) acres of land, purported to be transferred and conveyed to one Charles J. Helm, with intent then and there to defraud some person or persons to these jurors unknown, contrary etc.”

We regard the indictment sufficient. The usual form of charging this offense in the indictment is, that the defendant “feloniously and falsely did make, forge and counterfeit” the writing described, “with intent one A. B. to defraud.” (3 Glf. on Ev. § 104.) This crime at common law, has been defined as “the fraudulent making or alteration of a writing to the prejudice of another man's right,” (4 Bl. Com. 247), or more recently, as “a false making malo animo, of any written instrument, for the purpose of fraud and deceit.” (2 E. P. c. c. 19, S. 1, p. 852; Rex v. Parkes, 2 Leach, 703; 2 E. P. C. c. 19, S. 49, p. 965.) And the offense “may be complete though there be no publication or uttering of the forged instrument; for the very making with a fraudulent intention, and without lawful authority, of an instrument which, at common law or by statute, is the subject of forgery, is of itself a sufficient completion of the offense before publication.” (2 Russ. Crim. 318.) And where the indictment “proceeds upon a statute generally, the charge must be in the words of the statute.” (Id. 385.) The statutory words have been used in the present instance, and it was unnecessary to set forth the instrument alleged to have been forged; it was sufficient to describe it by its usual name or designation (2 W. S. 1091, § 28); and sufficient, also, that the indictment showed that the...