State v. Hascall

• Decision Date: 01 December 1920
• Docket Number: No. 22229.,22229.
• Citation: 226 S.W. 18,284 Mo. 607
• Parties: STATE v. HASCALL
• Court: Missouri Supreme Court

226 S.W. 18

284 Mo. 607

STATE v. HASCALL

No. 22229.

Supreme Court of Missouri, Division No. 2.

December 1, 1920

Appeal from Hannibal Court of Common Pleas; Charles T. Hayes, Judge.

Willie Hascall was convicted of uttering and publishing a forged instrument, and appeals. Affirmed.

E. W. Nelson, of Hannibal, B. E. Bigger, of Laclede, and Harry Carstarphen, of Hannibal, for appellant.

Frank W. McAllister, Atty. Gen., and Lewis Hord Cook, Asst. Atty. Gen., for the State.

WALKER, J.

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, R. S. 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 Rails, county, in the immediate neighborhood of the appellant. Some time 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 Rails 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:

"October 28, 1918. I give Willie Hascall the right to use my money in any way he wants to. [Signed] Mary E. Lynch. Grace Fay. Willie Hascall."

The body of this instrument and the signature of Willie Hascall thereto were stated by the cashier to have been in the handwriting of the appellant. " When appellant brought the instrument to the bank, the cashier wrote opposite the name of Grace Fay the word "Witness," and indorsed on the back of same "Mary Lynch Authority to Willie Hascall." Upon the receipt of this instrument the bank, as directed by the appellant, placed the amount of the check to his credit. The prosecutrix denies ever having given the appellant authority to act for her in this behalf or otherwise.

Appellant's contention that his utterance of the instrument in question was under the authority of the prosecutrix is supported by his testimony and that of the woman Grace Fay alone. He admits that the writing or order purporting to confer this authority was not executed, nor had it been seen, by the prosecutrix, but was framed and signed by himself and Grace Fay. There was also testimony that, when the prosecutrix resided in appellant's immediate neighborhood, he had signed checks for her and had been accustomed to receive her mail. The jury gave no credence to appellant's testimony.

The charging part of the information is as follows:

"That Willie Hascall, on the — day of October, A. D. 1918, at the township of Mason, county of Marion, did then and there unlawfully, feloniously pass, utter, and publish as true to the Hannibal Trust Company, a banking corporation 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, Mason township, Marion county, Missouri, arid order which was falsely forged and counterfeit of the tenor as follows: `October 28, 1918. I give Willie Hascall the right to use my money any way that he wants to. Mary E. Lynch. Witness: Grace Fay, Willie Hascall.'

"The signature of Mary E. Lynch on the order heretofore mentioned is not her signature, and that said Willie Hascall unlawfully and feloniously, and knowing the signature to be false and a forgery, did then and there utter, pass, and publish at the Hannibal Trust Company above mentioned, and did then and there unlawfully and feloniously and by means of said false and forged order obtain and get eight hundred and five dollars, of the value of eight hundred and five dollars, lawful money of the United States, then and there being the property of Mary E. Lynch, with the intent then and thereby unlawfully, feloniously, and willfully to injure, cheat, and defraud, contrary," etc.

I Information—Interlineation.—It is contended that the trial court erred in permitting the prosecuting attorney, after the jury was sworn, to amend the information by striking out the word "institution" as the same appeared therein as a part of the designation of the character of the Trust Company, and the insertion in lieu thereof of the word "incorporation." The averment as to the bank was not essential to charge the crime denounced by the statute. The offense consists, as defined in section 4656, R. S. 1909, under the facts adduced, in the felonious uttering and publishing as true of the instrument described, with knowledge at the time that the same was false and forged, with intent to cheat and defraud Mary E. Lynch, etc.

The only pertinency of the averment as to the character of the bank would be to show how the falsely uttered instrument could effect a fraud. That such allegation was not necessary is evident from the instrument itself as set forth in the information, which sufficiently discloses its apparent legal efficacy, and hence its nature as calculated to defraud. The averment, therefore, as to the bank was extrinsic (People v. Stearns, 21 Wend. [N. Y.] 409) and may be construed as surplusage (State v. Harris, 200 Mo. 423, 108 S. W. 28; State v. Chissell, 245 Mo. 550, 150 S. W. 1066). Thus considered, the interlineation in no wise changed the nature of the charge, was not misleading, and placed no burden upon the accused, other than that imposed under the information as originally framed. Under such a state of facts there can be no tenable basis for a claim of prejudice.

We recently held in State v. Feeler, 226 S. W. 15, affirming a like rule announced in State v. Walton, 255 Mo. loc. cit. 242, 184 S. W. 211, that such a change as is here complained of was permissible under our statute regulating amendments to indictments and informations. Section 5061, R. S. 1909.

Appellant cites in support of his contention our ruling in State v. Henschel, 250 Mo. 263, 157 S. W. 311. We there construed an information charging an offense against a corporation, and hence an averment as to its corporate character was necessary. Cur ruling in State v. Samuels, 144 Mo. 68, 45 S. W. 1088, in so far as it requires specific proof of an immaterial allegation, has been overruled by the Chissell Case, supra.

State v. Jackson, 90 Mo. 156, 2 S. W. 128, holds to the contrary of appellant's contention. In State v. Pierce, 136 Mo. 34, 37 S. W. 815, there is no ruling which by implication even can be said to sustain appellant's contention.

In State v. Patterson, 159 Mo. loc. cit. 101, 59 S. W. 1104, the crime was alleged to be the embezzlement of a company's money, and its character, whether incorporated or not, was an essential averment. Not so here.

While it is true in a criminal charge that nothing must be left to intendment or implication, this rule must be construed as having reference to such allegations as are necessary to inform the defendant of the nature and cause of the accusation against him, and not to extrinsic matter, the averment of which is unnecessary, and, if averred, need not, as we said in...