State v. Hathhorn

• Decision Date: 17 December 1901
• Parties: THE STATE v. HATHHORN, Appellant
• Court: Missouri Supreme Court

65 S.W. 756

166 Mo. 229

THE STATE v. HATHHORN, Appellant

Supreme Court of Missouri, Second Division

December 17, 1901

Appeal from Cole Circuit Court. -- Hon. T. B. Robinson, Judge.

Reversed and remanded.

Edwards & Edwards for appellant.

(1) The indictment is bad for the reason that it does not negative the exceptions contained in the section of the statute under which it was drawn. This indictment was drawn when the statute of 1889 was in force and is drawn under either section 3644, section 3645 or 3646, which correspond at this time to sections 2012, 2013, 2014, each of which contains an exception and the indictment does not negative such exception. If it was drawn under section 3644, the indictment is bad, for the words "or caused to be uttered" are not contained in the indictment; or, of the indictment is good without those words, then instruction 1 for the State is bad under the indictment, because those words are not contained in the indictment and should not have been used in the instruction. State v. Meek, 70 Mo. 357; State v. O'Brien, 74 Mo. 549; State v Bockstruck, 136 Mo. 335; State v. Hesseltine, 130 Mo. 468. (2) Instruction 1, for the State, is bad because, if the indictment is bottomed on section 2012, it uses language contained in that section, to-wit, "or caused the same to be uttered as true," and these words are not contained in the indictment, and again, because it tells the jury in the last part of the first paragraph that if defendant had possession of the alleged forged instrument "with the intent of using the same or causing it to be used as a true act and deed," etc., and no such language is used in the indictment, nor in any section of the statute and because it leaves out the word "feloniously" without which no offense could be committed under the indictment. State v. Samuels, 144 Mo. 68; State v. Horner, 48 Mo. 520; State v. McLain, 60 S.W 736; State v. Cunningham, 154 Mo. 178. (3) The indictment as originally drawn showed that W. S. Freshour was alleged to be the owner and in the possession of the land on July 13, 1898. Whereas, the indictment now shows that it was on July 13, 1897. Freshour died July 2, 1897, and, hence, had been dead a year or more at the time the allegation of ownership and possession was alleged to be in him. An alteration of a note, even where the change is made for the benefit of the maker, has been held time and again by this court to make void the note. Haskell v. Champion, 30 Mo. 136; Bank v. Fricke, 75 Mo. 178; Morrison v. Garth, 78 Mo. 434. Much more strict is the rule where a change is made in a paper like the one we are now considering. State v. Patterson, 59 S.W. 1104. All through the examination of defendant by the State, matters were brought out, not in any manner referred to by defendant's counsel, and over their objections he was forced to answer them. The statute pronounces against such cross-examination, and this court has upheld the statute from its earliest decisions under the statutes. State v. Grant, 152 Mo. 57.

Edward C. Crow, Attorney-General for the State; Perry S. Rader, special counsel.

(1) It was not necessary to negative the exceptions stated in the statute. Where an affirmative offense will appear without reference to the exception, or where a distinct crime may be charged without recounting such exception, or where the exception is not descriptive of the offense, or where the exception is contained in another section of the statute, the exception need not be negatived in the indictment. State v. Bockstruck, 136 Mo. 351; State v. O'Gorman, 68 Mo. 189; State v. Jaques, 68 Mo. 261; State v. Shiflett, 20 Mo. 417; State v. Cox, 32 Mo. 566; State v. Sutton, 24 Mo. 377; State v. Meek, 70 Mo. 357; State v. O'Brien, 74 Mo. 549. (2) If the evidence showed that defendant had the deed in his possession, etc., at any time within three years of the finding of the indictment, at the November term, 1898, the law permitted his conviction, whether the indictment charged that he had the deed in his possession eleven days (July 13, 1897) or one year and eleven days (July 13, 1898) after Freshour's death. R. S. 1889, sec. 3999; State v. Crawford, 99 Mo. 74; State v. McDaniel, 94 Mo. 301; State v. Burnett, 81 Mo. 119; State v. Eaton, 75 Mo. 595. In view of this statute and these rulings of this court, it was immaterial whether the indictment was changed after it was filed or not. The change, even admitting it was made, was to lay the crime as having been committed in July, 1897. The indictment was good in either case. (3) The use in the first instruction given of the words "with intent to injure or defraud by uttering the same as true or causing the same to be uttered as the true act of William S. Freshour," did not enlarge the issues made by the indictment, and was not error. State v. Rucker, 93 Mo. 88; State v. Fredericks, 85 Mo. 150; State v. Johnson, 111 Mo. 584; State v. Payton, 90 Mo. 220; State v. Anderson, 89 Mo. 312; State v. Scuchmann, 133 Mo. 111; Langdon v. People, 133 Ill. 382. (4) There was a sufficiency of evidence to support the intent; that is, the charge that the defendant then and there had said writing and deed in his possession, well knowing the same to be forged, counterfeited and falsely made "with the intent then and there and thereby of unlawfully and feloniously uttering and passing the same as true." Paige v. People, 3 Abb. App. Dec. (N.Y.) 447; Com. v. Whitney, Thacher's Crim. Cas. (Mass.) 590; State v. Horner, 48 Mo. 522; Com. v. Searle, 2 Binn (Pa.) 338; People v. Caton, 25 Mich. 392; People v. Bigham, 2 Mich. 550; Charhoon v. Com., 20 Gratt. (Va.) 733; Smith v. State, 20 Neb. 284.

OPINION

SHERWOOD, P. J.

The prosecution in this cause was bottomed on section 3644, Revised Statutes 1889, now section 2012, Revised Statutes 1899, which reads in this way:

"Every person who shall have in his possession, buy or receive any falsely made, altered, forged or counterfeit instrument or writing, the forgery of which is hereinbefore declared to be an offense, except such as are enumerated in section 3633, knowing the same to be forged, counterfeited or falsely made or altered, with intent to injure or defraud, by uttering the same as true or false, or causing the same to be so uttered, shall upon conviction be adjudged guilty of forgery in the fourth degree."

The indictment, omitting the deed, acknowledgment, etc., is the following: "The grand jurors of the State of Missouri, within and for the county of Cole, now here in court, duly impaneled, sworn and charged, upon their oath, present that David L. Hathhorn, on or about the thirteenth day of July, 1897, at the county of Cole aforesaid, knowingly, unlawfully and feloniously, had in his custody and possession a certain false, counterfeited and forged instrument of writing and printing purporting to be a deed of conveyance of real estate situate in Cole county, Missouri, and described as the northwest quarter of section thirty-six (36) and the west half of the northeast quarter section thirty-six (36), township forty-five (45), range fourteen (14); also the south part of the southwest quarter of the southeast quarter section twenty-five (25) and the south part of the southeast quarter of the southwest quarter section twenty-five (25); also a piece of land in the southeast corner of the southwest quarter of the southwest quarter section twenty-five (25), beginning at the southwest corner of D. L. Hathhorn land and then running due south until it intersects the section line between section (25) and (36), all in township forty-five (45), range fourteen (14), containing in all about three hundred and five acres, from Wm. S. Freshour to Myra Jane Hathhorn, and purporting to be made by the said Wm. S. Freshour, and to be his act and deed, and which said forged and counterfeit written and printed instrument, to-wit, a deed from the said Wm. S. Freshour to the said Myra Jane Hathhorn for the land aforesaid, was then and there in words and figures, writing and printing, as follows, to-wit: . . . . And which said deed and instrument of writing so purporting to be the act and deed of the said Wm. S. Freshour purported and pretended to convey the land aforesaid to the said Myra Jane Hathhorn he, the said Wm. S. Freshour, being then and there the owner of and in possession of and having an interest in the real estate and lands aforesaid, and by which said false and forged instrument and deed so as aforesaid, made, counterfeited and forged, the said real estate purported to be transferred from the said Wm. S. Freshour to the said Myra Jane Hathhorn, and the title to the said land to be thereby affected transferred and conveyed as in said deed specified and set out. And the said David L. Hathhorn did then and there, on the day and year aforesaid, at the county and State aforesaid, unlawfully, knowingly and feloniously have the said falsely made, altered, forged and counterfeited instrument of writing and deed hereinbefore set out and described, in his possession then and there well knowing the same to be forged, counterfeited and falsely made, with the intent, then and there, and thereby, to unlawfully and feloniously injure and defraud by then and there unlawfully and feloniously uttering and passing the same as true, against the peace and dignity of the State."

The original indictment, now before us, plainly shows the figure 7 superimposed upon the figure 8 in the date mentioned in the above indictment. Whether this change occurred in the last figure in the date, prior to the time the indictment was presented by the grand jury, and filed by the clerk, or subsequently thereto, is one of the contentions in this case, which will be adverted to later on.

The indictment, aside from the alleged...