State v. Mills

• Citation: 47 S.W. 938,146 Mo. 195
• Parties: STATE v. MILLS.
• Decision Date: 07 November 1898
• Court: United States State Supreme Court of Missouri

47 S.W. 938

146 Mo. 195

STATE v. MILLS.

Supreme Court of Missouri, Division No. 2.

November 7, 1898.

FORGERY — FOURTH DEGREE — INDICTMENTS — UTTERING — CONVICTION.

1. Rev. St. 1889, § 3644, defining the offense of forgery in the fourth degree as having in one's possession, buying, or receiving a forged instrument, knowing the same to be forged, with intent to injure and defraud by uttering the same as true, does not include the offense of uttering the instrument.

2. An indictment for forgery, charging defendant with "selling and delivering," with intent to defraud, a forged deed of trust, with intent to have the same uttered and passed, knowing the deed to be forged, is good, under Rev. St. 1889, § 3646, prohibiting the "passing, uttering or publishing" of forged paper.

3. The fact that accused might have been convicted under a statute defining forgery in the fourth degree does not necessarily prevent his conviction under the statute defining forgery in the first degree.

Appeal from St. Louis criminal court; William Zachritz, Judge.

Herbert Mills, alias John Bauer, was convicted of forgery in the first degree, and he appeals. Affirmed.

Chas. T. Noland, for appellant. Edward C. Crow, Atty. Gen., and Sam B. Jeffries, Asst. Atty. Gen., for the State.

GANTT, P. J.

The defendant, having been convicted of forgery, and sentenced to 10 years' imprisonment in the penitentiary, appeals to this court for a reversal of his sentence. He assigns only one ground of error. He insists that the second count of the indictment, under which he was convicted, does not charge him with forgery in the first degree, and the circuit court erred in instructing the jury as to the minimum punishment. He maintains that the pleader evidently intended to charge an offense under sections 3644 and 3645, which sections defined forgery in the fourth degree. The controverted count is in these words:

"And the grand jurors aforesaid, upon their oath aforesaid, do further present that Herbert Mills, alias John Bauer, on the 7th day of April, A. D. 1897, at the city of St. Louis aforesaid, unlawfully and feloniously had in his custody and possession a certain false and counterfeit instrument in writing and printing, to wit, a deed of trust, purporting to be made by John Bauer, which said false, forged, and counterfeit written and printed instrument, to wit, a deed of trust, is as follows; that is to say:

"`This deed of trust, made and entered into this fifth day of April, eighteen hundred and ninety-seven, by and between John Bauer, a widower of the city of St. Louis and state of Missouri, party of the first part, and John McMenary, of the city of St. Louis and state of Missouri, party of the second part, and Alphonso J. Walsh, of the city of St. Louis and state aforesaid, party of the third part, witnesseth: That the said party of the first part, in consideration of the debt and trust hereinafter mentioned and created, and of the sum of one dollar to him paid by the said party of the second part, the receipt of which is hereby acknowledged, do by these presents grant, bargain, and sell, convey, and confirm unto the said party of the second part, forever, all the following described real estate, situated in the city of St. Louis and state of Missouri, and known and described as follows, to wit: Being lot (11) eleven, and the western seventeen (17) feet of lot ten (10), in block nine (9) of Peter Lindell's First addition, and being in block 1952 of the city of St. Louis, fronting together forty-two (42) on the north lines of Laclede avenue, by a depth, northwardly, between parallel lines, of one hundred and twenty-eight (128) feet six inches, to an alley, and bounded north by said alley, east by the eastern eight (8) feet of lot (10) ten, south by Laclede avenue, and west by lot No. 12 of said block and addition. To have and to hold the same, with the appurtenances, to the said party of the second part, and to his successors hereinafter designated, and to the assigns of him and his successors, forever. In trust, however, for the following purpose: Whereas, the said John Bauer, for value received, and borrowed money, has executed and delivered to the party of the third part his seven negotiable promissory notes, of even date herewith, drawn to the order of Alphonso J. Walsh, party herein of the third part, and payable as follows, to wit: One principal note for the sum of thirty-five hundred ($3,500) dollars, payable in three years after date, and six interest notes for the sum of one hundred and five ($105) dollars each, payable respectively in 6, 12, 18, 24, 30, and 36 months after date, all of said notes bearing eight per cent. interest per annum from maturity; it having been agreed between the parties hereto that when one of said notes, whether of interest or principal, after having become due and payable, should remain unpaid, then all of said notes should become due and payable at once, whether due on their face or not; to secure the payment of which said notes the party of the first part has executed this deed of trust; and he also agreed with said party, his indorsers and assignees, to cause all taxes and assessments, general and special, to be paid whenever imposed upon said property, and within the times required by law, and also to keep the improvements upon said property constantly and satisfactorily insured, until said notes are paid for the sum of thirty-five hundred ($3,500) dollars, and the policy or policies therefor to keep constantly assigned unto the said party of the second part for further securing the payment of said notes, and the same apply towards the payment of said notes, unless otherwise paid, when they respectively become due as aforesaid. And the said party of the first part hereby guaranties to the said party of the third part that said property herein described is free and clear of mechanics' liens; and said party of the first part further agrees that, in case any lien should hereafter be filed against said property after the execution of this trust, then and in that case said liens so filed shall have the same force and effect as if any of said notes hereinbefore described shall become due and payable, and all the covenants and agreements herein provided shall be in full force and effect and carried out as if said notes were actually due and payable. And in the event the said party of the third part, or his assigns or legal representatives, or the party of the second part, or his successors in trust, shall expend any money to protect the title or possession of said premises, then all such money so expended shall be a new and additional principal sum of money secured by this instrument, and shall be payable, and may be collected, with interest thereon at the rate of ten per centum per annum from the time of so expending the same: Now, therefore, if the said John Bauer, representatives or assigns, shall well and truly pay, or cause to be paid, unto the holder or holders thereof, respectively, all and singular the said promissory notes above mentioned, at maturity thereof, respectively, according to the tenor of the same, and shall well and truly keep and perform all and singular the several covenants and agreements hereinbefore set forth, then this trust shall cease and be void, and the property hereinbefore conveyed shall be released at the cost of said party of the first part; but if either one of said notes, or any part thereof, be not so paid at maturity according to the tenor of the same, or if default be made in due fulfillment of said covenants or agreements, or either of them, then this conveyance shall remain in force, and said party of the second part (whether acting in person or by attorney in fact hereunto authorized under seal), or, in case...