State v. Hascall
| Decision Date | 01 December 1920 |
| Citation | 226 S.W. 18,284 Mo. 607 |
| Parties | THE STATE v. WILLIE HASCALL, Appellant |
| Court | Missouri Supreme Court |
Appeal from Hannibal Court of Common Pleas. -- Hon. Charles T. Hays Judge.
Affirmed.
E. W Nelson, B. E. Bigger and Harry Carstarphen for appellant.
(1) The court erred in granting the State leave to amend the information by interlineation. State v. Schrum, 255 Mo. 273; State v. Henschel, 250 Mo. 263. (2) It is conceded, by reason of the amendment, that the information did not designate whether it was a person, partnership or corporation to whom the instrument was passed, uttered and published. State v. Patterson, 259 Mo. 101. It does not permit of dispute that Sec. 4656, R. S. 1909, under which Hascall is charged, creates two distinct classes of offenses. State v. Burgess, 268 Mo. 407. To complete this offense the instrument must be passed, uttered or published to a person, persons or a corporation and the person or corporation to which passed becomes a material element of the charge and must be set out particularly, both to afford the accused his rights guaranteed under the Constitution, Art. 2 sec. 22, wherein the accused is given the right "to demand the nature of the cause of the accusation" and also that the information must be sufficiently definite to bar another prosecution. State v. Murphy, 164 Mo.App. 204; State v. Henschel, 250 Mo. 263; State v. Jackson, 90 Mo. 156; State v. Pierce, 136 Mo. 34; State v. Samuels, 144 Mo. 68; State v. Meysenburg, 171 Mo. 22. Neither is corporation alleged by the fact that the information contains the words "legally organized and existing under and by virtue of the laws of the State of Missouri, located and doing a general banking business at Hannibal." State v. Washington, 259 Mo. 335. The accused was thus forced to trial on an information which became a valid charge, if at all, only after the trial was begun. (3) Stripped of verbiage the allegation states this: "did pass, utter and publish and order," a conjunctive accusation of uttering and ordering, but no allegation that any particular thing was uttered or ordered. Further in the information is an attempt to allege that an order was forged and money was obtained, but no allegation that accused uttered the order so alleged to be forged. State v. Fairlamb, 121 Mo. 154. This is not a case of the mere misspelling of a word as the omission of the letter "h" in the word "child": State v. Griffin, 155 S.W. 432, 249 Mo. 624. If we must assume the information means something else than what it states, then guesses are necessary, and the word "and" may be "any," "no" "one" or "red." State v. Campbell, 210 Mo. 202; State v. Clinkenbeard, 135 Mo.App. 189. (4) Instruction 1, on behalf of the State, does not direct the jury to find the order to be as alleged in the information but varies from it, as does the evidence in the case. "Where the matter of a written instrument is introduced into the pleading, so as to imply that a correct recital is intended, very slight discrepancies between the instrument set out and that produced in evidence are fatal." State v. Smith, 31 Mo. 121; State v. Fay, 65 Mo. 490; State v. Owen, 73 Mo. 440; State v. Chamberlain, 75 Mo. 382; State v. McNerney, 118 Mo.App. 60; Commonwealth v. Lawless, 101 Mass. 32; Brown v. People, 66 Ill. 344; Hart v. State, 20 Ohio 49; State v. Blanchard, 74 Iowa 628. "Where the indictment attempts to set forth an instrument or writing according to its tenor, the evidence must conform to the instrument set out, although the instrument is unnecessarily particular." 22 Cyc. 464. (5) The instrument as set out in the charge contains the word "witness," and the instruction mentioned does not require the jury to so find. "When the state charges a violation in a particular way, it must be bound by the position it takes, and is not entitled to a verdict in its favor unless it makes proof of the particular charge which it has made." State v. Young, 136 Mo.App. 881. (6) The trial court permitted the State's Attorney to read in evidence an order different from that defendant was charged with uttering, in that court directed counsel, to omit a part thereof, to-wit, the word "witness." 1 Wharton's Crim. Ev. (10 Ed.) p. 322. (7) The defendant should have been arraigned and given an opportunity to enter his plea after the amendment of the information, otherwise there was no issue joined, since criminal law does not permit of a sentence by default. Maeder v. State, 11 Mo. 363; State v. Andrews, 27 Mo. 267; State v. Koerner, 51 Mo. 174.
Frank W. McAllister, Attorney-General, and Lewis Hord Cook, Assistant Attorney-General, for respondent.
(1) The information is drawn under Sec. 4656, R. S. 1909, and is sufficient in form and substance and follows the language of the statute. State v. Watson, 65 Mo 115; State v. Chissell, 245 Mo. 554; Kelley's Crim. Law and Procedure, sec. 187. (2) After the reading of the information to the jury, the prosecuting attorney, by leave of court, amended the information by striking out the word, "institution," and inserting in lieu thereof the word, "corporation." To this appellant objects because the court denied him a continuance on his application. We believe the information valid without the amendment. State v. Pullen, 81 Mo. 387; State v. Flora, 109 Mo. 295. Ownership of the bank, whether owned by a corporation, a copartnership or an individual, is not an essential element of the charge. The Hannibal Trust Company is the place alleged where the defendant uttered or passed the forged order and has to do only with the venue. Defendant could not possibly have been misled by the use of the word, "institution," instead of the amendment, "corporation." No rights of the defendant could have been violated by the alteration. Section 5115, R. S. 1909, provides that no indictment or information shall be deemed invalid, nor shall the trial, judgment or other proceedings thereunder be set aside, or in any manner affected, because of any defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits. It is not necessary to state in the information in any manner the name of the person to whom the forged instrument was uttered and the setting out that the order was passed "to the Hannibal Trust Company, a banking institution" is mere surplusage. State v. Stewart, 61 Iowa 203. (3) The proof shows that the notation "witness" was written on the order by Mr. Hickman, acting on behalf of the bank when the defendant presented the order at the Hannibal Trust Company. Instruction number one sets out the order in the same manner that it is set out in the information with the exception of the omission of the word, "witness." The word, "witness," as used in the information is an immaterial variance from the proof. State v. Estes, 70 Mo. 427. (4) There is an error in the information consisting of the use of the word "and," instead of "an." It is quite apparent that the error is a clerical one and did not in any manner "tend to the prejudice of the substantial rights of the defendant upon the merits." This being true, the error did not render the indictment invalid. Sec. 5115, R. S. 1909; State v. Morehead, 195 S.W. 1043; State v. Dubenick, 237 Mo. 185; State v. Griffin, 249 Mo. 627. (5) Appellant was arraigned and waived the reading of the information and entered his plea of not guilty to the crime charged therein. After the jury was sworn, the prosecuting attorney, by leave of court, amended the information as stated. In his motion for a new trial, appellant objected because he was not arraigned to the amended information. Under the authority of the cases cited, it is not necessary to set out in the information the corporate existence of the Hannibal Trust Company. Therefore, the information, as it stood before this amendment, is good and by the authority of State v. Dorgatz, 244 Mo. 227, no re-arraignment is necessary. State v. Loesch, 180 S.W. 879. (6) The supplemental motion for a new trial was invalid as it was filed out of time. Sec. 5285, R. S. 1909; State v. Simonsen, 263 Mo. 269.
Appellant was charged by information in the Hannibal Court of Common Pleas with having uttered and published as true a forged instrument with knowledge of the forgery as defined in Section 4656, Revised Statutes 1909, in order to obtain $ 805 of the property of Mary E. Lynch, with intent then and there to defraud. Upon a trial he was convicted and sentenced to two years' imprisonment in the penitentiary.
For many years prior to the time the offense is alleged to have been committed, October 28, 1918, Mary E. Lynch, a widow, had lived in Ralls County in the immediate neighborhood of the appellant. Sometime during the latter part of September, 1918, or about one month before the offense is alleged to have been committed, she removed to Frankford in Pike County. She was about 58 years of age, somewhat infirm and feeble in health. Her inability to write rendered it necessary in her correspondence and the transaction of other business, for her to depend upon others.
On the 10th day of October, 1918, a registered letter addressed to the prosecutrix at her former residence in Ralls County came into the possession of the appellant. It contained a check for $ 805 payable to Mary E. Lynch. Appellant signed for this letter and took possession of same. He then went to the Hannibal Trust Company and deposited the check in the name of Mary E. Lynch, the payee, by Willie Hascall. In so doing he stated to the cashier that he was to have the money, and upon being informed that he must procure written authority therefor he returned later with the following writing:
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