State v. Jackson
| Decision Date | 08 June 1909 |
| Parties | THE STATE v. NOAH JACKSON, Appellant |
| Court | Missouri Supreme Court |
Appeal from Clay Circuit Court. -- Hon. Francis H. Trimble, Judge.
Affirmed.
John A Cross, J. M. Sandusky, R. H. Musser, Pross T. Cross and William Henry for appellant.
(1) Defendant's motion for his discharge should have been sustained, for the reason that the court was without jurisdiction to try him on the indictment herein. Sec. 2512 R. S. 1899, requires that indictments returned by the grand jury "shall be presented to the court and shall be there filed and remain as records of such court." Defendant was entitled to know that he was being tried upon the indictment "there filed" in the Clinton Circuit Court, which, if the law has been complied with, is a record of that court, and the State should have shown that the copy of the indictment, upon which defendant was tried, was in fact the indictment "there filed" if in fact one was "there filed," and the circuit court of Clay county, before exercising jurisdiction of the indictment should have required the showing in full compliance with this statutory requirement by proof of its filing, or by amendment of the transcript, if in fact such indictment was "there filed" by the indorsement of the clerk of said court thereon, showing the date of said filing. State v. Clark, 18 Mo. 432; State v. Gate, 68 Mo. 22; State v. Bell, 158 Mo. 479; State v. Simpson, 67 Mo. 647; State v. Green, 19 Ark. 178; State v. McKenzie, 24 Ark. 636; State v. Goodson, 29 Fla. 511; State v. Westcott, 31 Fla. 458; Garden City Ins. Co. v. Stayart, 79 Ill. 259. (2) Is the indictment good in this case? It charges defendant with having forged a certain evidence of debt, commonly known as a deposit slip or deposit ticket, on the Farmers' Bank of Cameron, Missouri, and undertakes to set out in the indictment the alleged forged instrument in haec verba, without a single averment of any extrinsic matter which could give the instrument alleged to have been forged any force or effect beyond what appears on its face. The deposit slip has no legal validity and affects no legal rights so as to injure another, which should appear from the indictment charging the offense, that such was its legal character, either by the instrument itself or by matter aliunde which will show it to be of that character. The indictment fails to comply with this rule. State v. Clark, 8 Ohio St. 630; Raymond v. People, 30 P. 510; sec. 2001, R. S. 1899. All the instruments mentioned in this section are made negotiable instruments by the laws of this State, and an instrument on which a suit could be brought. Laws 1905, p. 243. The statute only applies to negotiable instruments and other evidence of debt ejusdem generis. State v. Schuchman, 133 Mo. 111; State v. Kruger, 134 Mo. 262. The term deposit slip or deposit ticket, as used in said indictment, is not such an evidence of debt as comes within the term "or other evidence of debt" as therein used; it is a general term, following specifically defined instruments of indebtedness, and can only be construed as including evidence of debt of a like class to those specifically defined. State v. Schuchman, supra; End., Int. Stat., sec. 400; State v. Williams, 2 Strob. 474; Ins. Co. v. Hamilton, L. R. 12 App. Cas. 484; Bank v. Bank, 102 Mo.App. 357; Weisinger v. Bank, 10 Lea. 330; Bank v. Clark, 134 N.Y. 368; Hotchkiss v. Mosher, 48 N.Y. 478; Mander v. Bank, 20 U. C. C. P. 125, 21 U. C. C. P. 493; Bolles, Mod. Law of Banking, pp. 466, 467; Talcott v. Bank, 53 Kan. 480; Lang v. Strauss, 107 Ind. 94. (3) There is a fatal variance between the deposit slip or deposit ticket described in the indictment and the deposit ticket or deposit slip proven in the testimony, both as to the date and signature. State v. Smith, 31 Mo. 120; State v. Wall, 39 Mo. 532; State v. English, 67 Mo. 136; State v. Owen, 73 Mo. 440; State v. Chamberlain, 75 Mo. 382; State v. Jackson, 90 Mo. 156; State v. Chinn, 142 Mo. 507; State v. Kardowski, 142 Mo. 463; State v. Reed, 154 Mo. 122; State v. Weeks, 88 Mo.App. 263; State v. McNerny, 118 Mo.App. 60. The evidence in this case does not even tend to prove that the deposit slip, set out in the indictment, was signed at all, much less signed by some one as an officer of the bank. State v. Fay, 65 Mo. 490; State v. Stowe, 132 Mo. 199; State v. Imboden, 157 Mo. 83; State v. Harroun, 199 Mo. 519.
Elliott W. Major, Attorney-General, and Chas. G. Revelle, Assistant Attorney-General, for the State.
(1) Nothing but the record proper can be considered, as defendant was duly sentenced and judgment pronounced before his motion for new trial was passed upon. Preliminary to the sentence he was asked in the presence of his counsel if he had any legal cause to show why judgment should not be pronounced. If he desired to have matters of exception reviewed, it was his duty to call the court's attention to the fact that his motion for new trial was pending, and failing in this he must be held to have waived same. Secs. 2658, 2659, 2689, R. S 1899; McComas v. State, 11 Mo. 79; Carrington v. Hancock, 23 Mo.App. 299; State v. Nagel, 136 Mo. 50; State v. Hall, 26 W.Va. 236. (2) The indictment charges with precision the elements and facts necessary to constitute the crime of forgery, and fully informs the defendant of the exact nature and cause of the accusation against him. State v. Yerger, 86 Mo. 37; State v. Paul, 203 Mo. 687; State v. Bell, 212 Mo. 129. (a) It is not necessary that the indictment charge an intent to defraud any particular person. It is sufficient if it charges generally an intent to defraud. State v. Phillips, 78 Mo. 49. (b) There is no merit in defendant's contention that a deposit slip or ticket issued by a bank to a depositor is not a subject of forgery. These slips are issued for the sole purpose of furnishing a depositor evidence of his claim and right, and the liability of the bank to him. They are the most solemn and positive acknowledgments on the part of the bank of its receipt of the holder's money, and of its indebtedness to him, and afford the best foundation of legal liability. If genuine, they alone would establish the bank's indebtedness to the holder, and are of absolute legal efficacy. No instrument could be more prejudical to the rights of the bank than this. Forgery is the false making, or materially altering with intent to defraud, of any writing, which, if genuine, might be of legal efficacy, or the foundation of legal liability, or the evidence of another's rights and claims. Any instrument which purports on its face to be good and valid for the purposes for which it was intended, and which may operate to the prejudice of the rights of another, is a subject of forgery. State v. Kattleman, 35 Mo. 107; State v. Gullette, 121 Mo. 456; State v. Eads, 68 Mo. 150; State v. Tobie, 141 Mo. 559; State v. Sharpless, 212 Mo. 194; Shannon v. State, 109 Ind. 407; State v. Kimball, 50 Me. 409; Barnum v. State, 15 Ohio 717; Long v. Strauss, 107 Ind. 94. (c) The forgery of a receipt, or the fraudulent alteration of a date or amount thereof, with intent to prejudice the rights of another, or obtain thereby credit for money, is within the statute against forgery. State v. Kattleman, 35 Mo. 107; State v. Shelters, 51 Va. 102; State v. Riebe, 27 Minn. 315; Barnum v. State, 15 Ohio 717; Com. v. Brown, 147 Mass. 585. (3) Equally untenable is the contention of defendant that the proceedings should have been dismissed and defendant discharged because the clerk had failed to endorse on the indictment the filing and the date thereof. A paper is filed when delivered to the proper officer and received by him to be kept on file, and it is not within the power of the clerk by his remissness to balk the action of the grand jury or defeat the purpose of a prosecution. The mere indorsement of the clerk is no constituent element of the filing, but is only an evidence, and not the sole one, of the filing. The record in this instance discloses that the indictment was returned in open court, and properly filed, and this is sufficient. Baker v. Henry, 63 Mo. 519; State v. Grate, 68 Mo. 25; State v. Hogan, 31 Mo. 342; State v. Vincent, 91 Mo. 665; State v. Clark, 18 Mo. 435; State v. Plummer, 55 Mo.App. 291. This motion, however, should not be reviewed by this court, as the record proper fails to show the filing of same, or the ruling of the court thereon. No good reason can be perceived why the rules governing motions for new trial, in arrest, and others of that ilk, should not be applicable to this. Stark v. Zender, 204 Mo. 449; Pennowfsky v. Coerver, 205 Mo. 137. (4) After having served timely notice, in writing, on defendant and his attorneys, to produce in court the deposit slip, or ticket, alleged to have been forged (the same being in defendant's possession), there was no impropriety in State's counsel requesting at the opening of the trial that said slip be then produced. This request being denied, it was proper and necessary to offer the notice theretofore given, together with the return thereon showing the service. This laid the foundation for the admission of secondary evidence and was not prejudicial to defendant. State v. Barnett, 110 Mo.App. 592; State v. Sharpless, 212 Mo. 200. (5) In the case at bar by overruling the demurrer which directly and specifically raised the question of alleged variance, and by giving and refusing the instructions it did, and by overruling the motion for new trial which again directly submitted this question to the trial court for decision, the court found and affirmatively declared that the alleged variance was not material or prejudicial, and this court will defer to the action of the trial court on this finding. State v. Carrigan, 210...
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