State v. Pierce

• Decision Date: 20 November 1896
• Citation: 37 S.W. 815,136 Mo. 34
• Parties: The State v. Pierce, Appellant
• Court: Missouri Supreme Court

37 S.W. 815

136 Mo. 34

The State v. Pierce, Appellant

Supreme Court of Missouri, Second Division

November 20, 1896

Appeal from Callaway Circuit Court. -- Hon. John A. Hockaday, Judge.

Reversed and remanded.

R. F Walker, attorney general, for the state.

(1) Defendant's application for continuance was properly overruled because the witnesses alleged to have been absent were present and testified at the trial, and defendant was not prejudiced. The second application for a continuance is not preserved. (2) The indictment charges, first, the forging and making by defendant of the order therein described by its tenor, and, second, that defendant passed, uttered, and published said false and forged order. It contains all the necessary averments, and is not subject to valid objection. R. S. 1889, secs. 3641 and 3646; State v. Yerger, 86 Mo. 33; State v. Jackson, 90 Mo. 156; State v Gullette, 121 Mo. 448; State v. Taylor, 117 Mo 181. (3) There was no reversible error committed by the trial court in the admission or exclusion of testimony, and the defendant will not be heard to complain on this account. (4) The instructions given by the court are in the usual form, properly declare the law under the evidence applicable to cases under sections 3641 and 3646, Revised Statutes, 1889, and are not subject to objection. No instructions claimed to have been asked by defendant and refused by the court are preserved in the record. (5) The remark made by the trial judge to the jury as to their duty to agree, if possible, could not have prejudiced defendant, and he will, therefore, not be heard to complain. State v. Pratt, 121 Mo. 566.

OPINION

Sherwood, J.

The indictment in this case is bottomed on sections 3641 and 3646, Revised Statutes, 1889, and omitting formal parts, is in the following form:

"Unlawfully and feloniously did falsely made and forge a certain instrument in writing, to wit, an order purporting to be the act of one John Wagers, by which a pecuniary demand and obligation for the payment of $ 15, by the said John Wagers, to one Jesse Maughs, on the delivery by said Maughs to said John W. Pierce of $ 15 worth of goods, purported to be created, which said false and forged instrument and order is of the tenor following, that is to say:

"'June 22, 1894.

"'Mr. Jes Mosse:

"Will you please let the barrer have $ 15 worth of good, and charge the same to me. You will get your money soon. Make him give you a receet after you sell him the goods. Not over $ 15.

"'Yours truly,

"'Mr. John Wagers.'

"With intent then and there and thereby unlawfully and feloniously to injure and defraud against the peace and dignity of the state.

"The grand jurors aforesaid, upon their oaths aforesaid, do further present and charge that John W. Pierce, on the thirtieth day of June, 1894, at the said county of Callaway, and state aforesaid, with intent to defraud one Jesse Maughs, did unlawfully, falsely, fraudulently, and feloniously pass, utter, and publish, and did falsely, fraudulently, and feloniously sell, exchange, and deliver, for the consideration of fifteen dollars worth of clothing and other goods and merchandise, to said Jesse Maughs, as true, a certain falsely made and forged instrument in writing, to wit, an order for fifteen dollars worth of goods, dated June 22, 1894, purporting to be made and issued by one John Wagers; and that the said John W. Pierce, at the said time so sold, exchanged, and delivered the said last mentioned instrument of writing and order, so falsely made and forged as aforesaid, then and there, to wit, on the said thirtieth day of June, A. D. 1894, well knew the same to have been falsely made and forged against the peace and dignity of the state."

On the thirtieth day of July, 1894, John W. Pierce, the defendant, came to the store of Henderson & Company, in Fulton, Missouri, and presented the following order to Jesse Maughs, a member of the firm, for payment:

"June 22, 1894.

"Mr. Jes Mosse -- Will you please let the barrer have $ 15 worth of good, and charge the same to me. You will get your money soon. Make him give you a receet after you sell him the goods. Not over $ 15.

"Yours truly,

"Mr. John Wagers."

The defendant was given goods to the amount of $ 15 upon the order and gave the following receipt as an evidence of same:

"$ 15. Fulton, Mo., June 30, 1894.

"Received of Henderson & Co. $ 15 in merchandise on order of John Wagers.

(Signed) "henry Moore."

John Wagers, whose name was signed to the order presented by defendant, testified that he never gave defendant or anyone else such an order, and that he never wrote or authorized anyone else to write or execute such an order to anyone; that the name signed to the order given by defendant to Maughs was not as he usually wrote his name; that he was not indebted to defendant at the time the order purported to have been given; that his first knowledge of the order was when he received it through the mail from Henderson & Maughs. He notified them that he had not made such an order and knew nothing about it.

Defendant testified in his own behalf that he did not write the order offered in evidence, and did not know where Maugh's store was and knew nothing of the occurrence. His father testified that defendant was at home, ten miles from Fulton, on the day the paper was proved to have been presented to Maughs and the goods delivered. A sister of defendant also testified that he was at home on the day he is charged to have presented the forged order to Maughs. Another witness testified that he was with defendant at his father's mill, ten miles from Fulton, on the day when defendant is alleged to have presented the forged order for payment. This witness fixes the time by stating that it was on the day that a negro was hanged by a mob in Callaway county for having outraged a white woman.

It was also shown that the name of "Maughs" was frequently pronounced as well as written "Mosse."

The first application of defendant for a continuance was properly overruled, inasmuch as the alleged absent witnesses were present and testified at the trial. As the second application has not been preserved, its merits can not be passed upon.

The indictment is in proper form, as such has been frequently approved by this court. State v. Yerger, 86 Mo. 33; State v. Jackson, 90 Mo. 156, 2 S.W. 128; State v. Gullette, 121 Mo. 447, 26 S.W. 354; State v. Taylor, 117 Mo. 181, 22 S.W. 1103. It charges the forgery of a certain instrument of writing in the first count, and in the second the uttering of such instrument.

On both these counts suitable instructions were given at the instance of the state, and the jury were told that if they found the defendant guilty, they should...