State v. Leonard

• Citation: 171 Mo. 622,71 S.W. 1017
• Parties: STATE v. LEONARD.
• Decision Date: 03 February 1903
• Court: United States State Supreme Court of Missouri

71 S.W. 1017

171 Mo. 622

STATE v. LEONARD.

Supreme Court of Missouri, Division No. 2.

February 3, 1903.

FORGERY — VALIDITY OF INSTRUMENT — INDICTMENT —ADMISSIONS—SURPLUSAGE.

1. Where an alleged forged railroad ticket which defendant was charged with having in his possession provided that it should be good for passage when officially dated, and that any alteration whatever rendered it void, an indictment alleging that, with intent to injure and defraud, the ticket was forged and counterfeited in this, to wit, that the date stamped on the back thereof of August 29, A. D. 1899, was obliterated and erased, was insufficient; since, if the ticket contained an alteration, it was void on its face, and therefore did not possess a sufficient resemblance to a valid instrument to mislead or deceive any one.

2. The allegation that the date stamp was obliterated and erased could not be rejected from the indictment as surplusage on the theory that, as the instrument was set forth according to its tenor, such clause might be so rejected, since the allegation constituted an admission of record that no offense had been committed.

3. Where an indictment for forgery of a railroad ticket contained an allegation that the ticket had been altered, by reason of which it was rendered void, it was immaterial that the evidence as to the alteration was conflicting.

Appeal from St. Louis circuit court; O'Neill Ryan, Judge.

Charles J. Leonard was convicted of having in his possession a forged railroad ticket, and he appeals. Reversed.

Thos. B. Harvey, for appellant. The Attorney General and C. D. Corum, for the State.

FOX, J.

The appellant in this case was indicted in pursuance of section 2012, Rev. St. 1899, charged with having in his possession a forged railroad ticket. He was tried upon this indictment, which resulted in a conviction, and punishment assessed at imprisonment in the county jail for six months.

Numerous errors are complained of and earnestly urged as causes for reversal of this case. It is not necessary to a full understanding of the questions presented to copy the indictment. The ticket charged to have been forged is such a puzzle that a copy of it, in this opinion, would not add any light to the discussion of the matters submitted to us for determination. It is first contended by appellant that the allegations in the indictment are so repugnant and inconsistent to each other as to have warranted the court in sustaining the demurrer to the evidence or the motion in arrest of judgment. In order to apply the proper tests as to the sufficiency of this indictment, it is well to first inquire as to the act by which forgery is committed. It is elementary that the act of forgery consists of causing a writing to appear of some legal efficacy, which in truth it does not possess, as by giving it the similitude of the genuine instrument. Bishop's New Criminal Law, vol. 2, § 572. There must, in the forged instrument, be such a resemblance to the genuine as is reasonably calculated to deceive or mislead. The resemblance need not be exact, but the instrument must be, "prima facie," fitted to pass as true. Bishop further says, in discussing this question, "that the closeness of similitude where similitude is required, will vary somewhat with the cases; the question in each case being whether or not in the particular instance the forgery has the needful adaptation to accomplish the purposed fraud." Measured by these principles, we see that there must be in the forged instrument a sufficient closeness of similitude to the genuine instrument as is necessary or reasonably calculated to accomplish the fraud. The ticket charged to have been forged or altered, which it is further charged was in the possession of defendant, is set out according to its tenor. This ticket provides that it shall be good for passage "when officially dated." It also provides that "any alteration whatever of this ticket renders it void." We take it that it is clear that the genuine ticket must be officially dated, and must not have any material...