State v. Jackson

• Decision Date: 08 June 1909
• Citation: 120 S.W. 66,221 Mo. 478
• Parties: STATE v. JACKSON.
• Court: Missouri Supreme Court

120 S.W. 66

221 Mo. 478

STATE v. JACKSON.

Supreme Court of Missouri, Division No. 2.

June 8, 1909.

1. CRIMINAL LAW (§ 1065)—APPEAL—MOTION FOR NEW TRIAL—WAIVER.

After a verdict of guilty and in due time, defendant filed his motion for a new trial, and, while the motion was still pending, he was brought before the court for sentence and was asked if he had any legal cause to show why judgment should not be pronounced. Held, that his failure to call the court's attention to the pending motion for a new trial did not waive such motion, the court being presumed to know that the motion was pending, as well as the grounds alleged, and the rendering of judgment against defendant while the motion was pending was in effect a sufficient denial of such motion to warrant consideration of the case on appeal.

2. CRIMINAL LAW (§ 1088)—APPEAL—RECORD—MOTION.

Where the record fails to show that defendant in a criminal prosecution moved for a discharge on the ground that the court was without jurisdiction to try him on the indictment, it is not sufficient that the bill of exceptions preserves the motion and recites the action of the court upon it and the exceptions of the defendant to such action; but the record should contain the motions filed which the appellate court is called upon to review.

3. INDICTMENT AND INFORMATION (§ 43)—FILING.

An indictment returned into open court, presented to the court, and deposited with the clerk, is in contemplation of law filed, and the failure of the clerk to indorse thereon the filing and the date of the return into court does not authorize the discharge of defendant.

4. FORGERY (§ 7)—NATURE OF INSTRUMENT— BANK DEPOSIT SLIP.

Under Rev. St. 1899, § 2001 (Ann. St. 1906, p. 1338), providing that every person who shall forge any bill of exchange, or other evidence of debt, made or issued by any incorporated bank or any order or check drawn by any such incorporated bank, or any cashier thereof, shall be guilty of forgery in the second degree, one who receives a deposit slip on making a deposit in a bank without having his deposit book with him, and who subsequently changes the figures on the deposit slip, increasing the amount of the deposit noted thereon, is guilty of forgery.

5. FORGERY (§ 29)—INDICTMENT—FACTS EXTRINSIC TO INSTRUMENT.

An indictment charging defendant with the forgery of "a certain evidence of debt, commonly known as the deposit slip or ticket, on the Farmers' Bank of Cameron," is not insufficient for failure to allege any extrinsic matter as to the value or effect of the deposit slip.

6. CRIMINAL LAW (§ 1186) — APPEAL — REVERSAL.

Under Rev. St. 1899, § 2534 (Ann. St. 1906, p. 1508), providing that no variance between the indictment and the evidence in the name or description of any matter or thing whatsoever therein named or described shall be deemed grounds for an acquittal of defendant, unless the trial court shall find that such variance is material to the merits and prejudicial to the defense, a variance in a prosecution for forgery between the indictment and the proof of the instrument forged will not be considered on appeal, where the trial court has not found that such variance is material.

7. FORGERY (§ 44) — SUFFICIENCY OF EVIDENCE—EXECUTION OF INSTRUMENT.

Evidence, in a prosecution for forging a bank deposit slip, held to show that the deposit slip set out in the indictment was signed by an officer of the bank.

8. CRIMINAL LAW (§ 823)—INSTRUCTIONS.

In a prosecution for forgery, an instruction that it is not necessary to prove defendant guilty by the testimony of witnesses who have seen the offense committed, but his guilt may be shown by proof of facts and circumstances from which it may be reasonably inferred, while not following approved precedents, was not reversible error where the court gave other instructions as to the nature of the proof necessary to a conviction.

9. FORGERY (§ 44)—EVIDENCE—SUFFICIENCY.

Evidence, in a prosecution for forgery committed by raising the amount of a deposit slip issued by a bank to the depositor in the absence of his passbook, held to support a conviction.

Appeal from Circuit Court, Clay County; Francis H. Trimble, Judge.

Noah Jackson was convicted of forgery, and appeals. Affirmed.

This cause is now pending before this court upon appeal on the part of Noah Jackson, the defendant, from a judgment of the Clay county circuit court convicting him of forgery in the second degree.

On September 18, 1907, the grand jury of Clinton county returned in open court an indictment charging defendant with forgery in the second degree; it being alleged that on May 1, 1907, he forged, counterfeited, and falsely made a certain evidence of debt, commonly known as a deposit slip or ticket, on the Farmers' Bank of Cameron, purporting to have been made and issued by said bank for the sum of $19,000. There were two counts in the indictment, both being identical, except as to the tenor of the forged instrument; one charging that the evidence of debt purported to be signed "C. E. Packard, Cashier, De Hart," and the other purporting to be signed "C. E. Packard, Cashier, D." On the 2d day of October, 1907, defendant filed an application for change of venue from Clinton county, charging bias and prejudice on the part of the inhabitants of that and all other counties in the Fifth judicial district. Thereafter said application and petition were considered, and the change awarded to Clay county, and the cause ordered transferred, and the transcript of all proceedings certified, which was accordingly done. Thereafter, to wit, February 25, 1908, defendant was duly arraigned and entered a plea of not guilty. June 8, 1908, defendant moved for his discharge, alleging that neither the original indictment nor the transcript disclosed the indorsement of the clerk thereon, showing the filing of the indictment or the date of the filing. This motion was overruled, and defendant thereupon demurred to the indictment, and after the same was determined adversely to him the trial proceeded in due form.

Upon the trial of this cause the evidence developed upon the part of the state tended to prove that, at all the times mentioned in the evidence, the Farmers' Bank of Cameron was a banking institution, duly organized and incorporated, and doing business as such under and by virtue of the laws of this state. C. I. Ford was president; N. S. Goodrich, vice president; C. E. Packard, cashier; H. B. Cooper, assistant cashier; T. W. Parton, chief bookkeeper; and Louis De Hart, assistant bookkeeper. For several years defendant had been doing business with this institution, at times depositing money therein, and at other times borrowing therefrom; he being, at the date of the commission of his offense, indebted thereto in the sum of about $16,000. On the 8th day of March, 1907, defendant went to the bank about the noon hour, and at that time Louis De Hart and Mr. Ford were present. Said De Hart was at that time acting as receiving teller, and was not acquainted with defendant. When defendant arrived at the bank, he told De Hart that he wanted to deposit $100. De Hart asked him to whose credit the deposit should be placed, to which defendant replied, "Noah Jackson." De Hart thereupon inquired if he was Noah Jackson, to which defendant answered in the affirmative, whereupon he produced $100 in currency, and, after the same had been counted and received by De Hart, he asked him for his pass or deposit book, and defendant said that he did not have same with him. De Hart thereupon made out a deposit ticket, together with a duplicate thereof, and, after signing said duplicate in the name of the cashier, he stamped under the name of Mr. Packard, "cashier," and to indicate who received the deposit attached either letter "D," or name "De Hart," and delivered same to defendant. The deposit ticket so delivered to defendant was of the character commonly used by banking institutions for that purpose, and stated, in substance, that defendant had deposited in the Farmers' Bank of Cameron for his account $100 in currency. Immediately following this defendant went to a trust company in Cameron and withdrew therefrom the sum of $5,000, which he had theretofore deposited, and in company with another party went to Kansas, where he deposited this money in a bank. About May 1st defendant returned to Cameron, and a part of his indebtedness being then due, he was notified to make payment. He accordingly went to the bank and gave his note in settlement of that portion of his indebtedness then due. In a few days thereafter, to wit, about May 1st, defendant again went to the bank and asked where all his money had gone, saying that on the 8th of March he had deposited $19,000, which was more than enough to discharge in full his indebtedness to that institution. On being informed that he had made deposit of no such sum, but, to the contrary, had deposited but $100, he contended that he had deposited $19,000, and had the bank's deposit slip or receipt disclosing that condition. He steadfastly contended that this amount was due him, and that De Hart had received $19,000 on March 8th, and had issued the deposit slip which he then and there presented. This ticket disclosed upon its face a deposit of $11,000 in currency and $8,000 in gold. Defendant, upon being asked where he had gotten this money, said that $5,000 of the amount had been received by him from the trust company. Upon being asked from what source he had received the rest, he said: "I will show it at the right time. You would not believe me if I would tell you." He again accused said De Hart of receiving the $19,000 and issuing the ticket in the form and for the amount disclosed by the ticket. Defendant passed the ticket around among various parties to convince them that this amount had been deposited by him. The ticket had been altered by prefixing a one and adding a cipher to the $100 in currency, making same read "$11,000"...