State v. Kroeger

• Decision Date: 31 March 1871
• Citation: 47 Mo. 552
• Parties: THE STATE OF MISSOURI, Respondent, v. ADOLPH E. KROEGER, Appellant.
• Court: Missouri Supreme Court

47 Mo. 552

THE STATE OF MISSOURI, Respondent,

v.ADOLPH E. KROEGER, Appellant.

Supreme Court of Missouri.

March Term, 1871.

Appeal from St. Louis Circuit Court.

The first count of the indictment charged that said Kroeger, “on the eleventh day of December, in the year of our Lord one thousand eight hundred and sixty-nine, at St. Louis, in the county of St. Louis aforesaid, with intent then and there to injure and defraud, did unlawfully and feloniously falsely make, forge and counterfeit, in county and State aforesaid, a check for the payment of money, purporting to be the act of M. E. Susisky, treasurer of the city of St. Louis, a municipal corporation duly organized and existing under and by virtue of the laws of the State of Missouri, in words and figures following:

‘OFFICE OF CITY TREASURER,

TABULAR OR GRAPHIC MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE TABLE

With intent then and there to defraud and injure the Traders' Bank, a bank at St. Louis, in the county of St. Louis aforesaid, duly incorporated under and by virtue of the laws of the State of Missouri, out of the sum of six thousand dollars, against the peace and dignity of the State and contrary to the form of the statute in such case made and provided.”

The second instruction asked by the defendant, and refused by the court, was as follows:

“2. If the jury find from the evidence that M. E. Susisky signed the paper set out in the indictment, in blank, and delivered the same to defendant alone, or with another, and gave the defendant authority to fill up said paper, and use the same or its proceeds for certain purposes designated by Susisky, and that the defendant, under this authority, filled up the blanks in said paper, then the jury ought to acquit the defendant, even though they may believe that defendant used said paper or its proceeds for a purpose or purposes not designated by said Susisky.”

The testimony of Susisky showed that the printed words “the order of” had been struck out by ink lines; that the words and figures “No. 143,” and the words and figures “December 11, 1869,” “cash or bearer, six thousand dollars,” had been inserted.

The third paragraph of the instruction given by the court, of its own motion, was as follows: “If the jury believe, from the evidence in the case, that M. E. Susisky was, on or about the 2d day of December, 1869, treasurer of the city of St. Louis, and that at said time he delivered the check described in the indictment to the defendant, already signed by him, with the name of ‘M. E. Susisky, treasurer,’ with the date, payee and amount left blank, with authority to fill up and use the same for the use and benefit of the city of St. Louis, and to fill up and use the same for no other purpose; and if you further find from the evidence that the defendant, on or about the 11th day of December, 1869, at St. Louis city and county, feloniously filled up said blanks by inserting ‘December 11, 1869,’ ‘cash or bearer,’ ‘six thousand,’ and ‘$6,000,’ with intent then and there to use the same for his own use and benefit; and that he did so use the same for his own use and benefit, and not for the use and benefit of said city of St. Louis, with intent to defraud and injure as charged, then this constitutes the crime of forgery in the third degree, and so you should find.”

Lackland, Martin & Lackland, and Allen, for appellant.

I. As substantially the same questions are raised upon the motion to quash the indictment and the motion in arrest of judgment, they will be considered together. The allegations in the indictment are repugnant to and inconsistent with each other. In the indictment it is averred that the defendant forged a check which purported to be the check of M. E. Susisky, treasurer of the city of St. Louis, and the check set out in the indictment does not so purport. As to the meaning of the word “purport,” see Downing v. The State, 4 Mo. 572; Bright et al. v. White, 8 Mo. 421; State v. Page & Bacon, 19 Mo. 213; 2 Russell on Crimes, 380; Commonwealth v. Kearns, 1 Va. Cases, 109; Arch. Crim. Pl., 5th ed., 47; Rex v. Reading, 1 East, 180; 2 Leach, C. C., 590; Rex v. Gilchrist, 2 Leach, 657; Rex v. Edsall, id. 662; State v. Smith, 31 Mo. 120; State v. Waters, 3 Brevard, 507; State v. Shawley, 3 Haywood, Tenn., 256. It is true, the instrument set out in the indictment has on its caption the words “office of city treasurer,” but there is no indication of the office of city treasurer of the city of St. Louis, and the instrument does not so purport. Again, this caption forms no part of the check. It is in nowise necessary to make it a complete instrument. Any one could date a check at the city treasurer's office. It is also true that the word “treasurer” follows Susisky's name on the check, but this no more purports to be his act as “treasurer of the city of St. Louis” than it does as treasurer of any other city, or corporation, or voluntary society.

II. The indictment is insufficient because the offense is not averred in the language of the statute, to-wit: that it does not allege that the instrument set out was, or purported to be, the act of another, by which any pecuniary demand or obligation was, or purported to be, transferred, created, increased, discharged or diminished, or by which any rights or property whatsoever was, or purported to be, transferred, conveyed, discharged, increased or in any manner affected. (Gen. Stat. 1865, ch. 202, p. 795, § 16.) It is true, the case of The State v. Fenly, 18 Mo. 445, decides this point against the defendant, and, as an authority, chiefly relies upon the case of The People v. Rynders, 12 Wend. 425. Both of these cases were decided, however, by only a majority of the court, and they must be admitted to be a departure from the rules of the criminal law which require the indictment to follow the language of the statute upon which it is drawn, descriptive of the offense.

III. Where an intent to defraud a particular person is averred it must be shown either, first, that the instrument, if genuine, would be the obligation of such person; or, second, that the defendant passed, or attempted to pass, the instrument to such person, as true, with knowledge of its real character. (United States v. Shelmire, 1 Bald. 370.) There is no presumption of law arising upon the face of the check, that defendant intended to defraud the Traders' Bank; because, if it were genuine, it would not be the contract of that bank. (2 Pars. Bills and Notes, 61, note.) And the proof utterly fails to show any such intention to defraud. The defendant never presented the check, for any purpose, to the Traders' Bank; but, on the contrary, presented it to the First National Bank, where it was deposited to his credit.

The third paragraph of the charge or instruction given by the court presents, in substance, to the jury this proposition, to-wit: that if Susisky signed the check in blank, and delivered it to defendant with authority for him to fill up and use it for the benefit of the city of St. Louis, and that defendant, under these circumstances, filled up and used the check for his own use, with the intent to defraud, etc., then the jury should find him guilty of forgery in the third degree. We deny that this instruction given by the court correctly presents the law applicable to the facts. On the trial before the Criminal Court, the counsel for the State relied upon three cases decided in England, in which the court held that where checks signed in blank were delivered to the defendants, with authority to fill them up with certain definite sums, and they were filled up with greater sums than those named, and the excess converted to the use of the parties filling them up, they were guilty of forgery. (Regina v. Wilson, 2 Car. & Kerr, 527; Rex v. Minterhart, 2 Brit. C. C. 486; 7 Car. & Payne, 652; Regina v. Bateman, 1 Coxe C. C. 186.) In regard to these cases we have to say that they are not in point. The questions in them do not arise in this case. The doctrine of these cases has been decided by this court, in three cases, to be otherwise; in which it has been held by this court that where instruments signed in blank were delivered to third parties, with authority to fill them up with certain specified sums, the fact that they were filled for amounts greater than those limited did not constitute forgery. (Tumelty v. Bank of Missouri, 13 Mo. 276; Farmer's Bank v. Gertin et al., 34 Mo. 119-22; Henderson v. Bendervoort et al., 39 Mo. 373; Spitler v. James, 9 Am. Law Reg., N. S., 605.) On same point see Trustees of Iowa College v. Hill, 1 Am. Law Reg., N. S., 744, note; State v. Flanders, 38 N. H. 324; Commonwealth v. Sankey, 22 Penn. 390; Hill v. Tennessee, 1 Yerg. 76. The last three cases would seem to establish the principle that if Kroeger obtained the check in question, signed in blank by Susisky, under a false and fraudulent representation or pretense that he would fill up and use it for the benefit of the city of St. Louis, and that if he afterward filled up and converted the check to his own use, it would not be forgery. It is true that in all the text-writers, from Coke and Hawkins down to Wharton, it is laid down that if one be employed to write a will, with instructions as to what it shall contain, and he write the will materially different from the instructions, and fraudulently procure the testator to execute it, under the belief that it is drawn agreeably to his instructions, it will constitute forgery. But we submit that this is a legal heresy; that the doctrine of the text-writers on this point is not supported by the cases referred to by them, and that it has been denied on principle by all the subsequent cases, with one single exception. This erroneous doctrine is stated in 3 Inst. 170; 2 East, P. C., 855; 1 Hawk. P. C., ch. 20, §§ 2-6; Bacon's Abr., tit. Forgery A; 2 Russell's Crim. Law, 318-22, and others of a more modern date. The texts cite and are founded upon Comb's case in Noy's Reports,...