State v. Samuels

• Decision Date: 17 May 1898
• Citation: 45 S.W. 1088,144 Mo. 68
• Parties: STATE v. SAMUELS.
• Court: Missouri Supreme Court

45 S.W. 1088

144 Mo. 68

STATE v. SAMUELS.

Supreme Court of Missouri, Division No. 2.

May 17, 1898.

FORGERY — INDICTMENT — ALLEGATIONS AND PROOF — PERSON DEFRAUDED.

1. Although Rev. St. 1889, § 3983, provides that it is unnecessary, in an indictment where an intent to defraud is necessary to constitute the offense, to allege the particular person so defrauded, yet, in a prosecution for uttering a forged instrument, where the indictment alleges the name of a person said to have been defrauded, the proof must conform to the allegation.

2. Where a forged check is passed in payment of the goods belonging to a firm, they are the persons defrauded, and not the person making the sale.

Appeal from circuit court, Boone county; John A. Hockaday, Judge.

Jake Samuels was convicted of uttering a forged check, and appeals. Reversed.

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

SHERWOOD, J.

The defendant is a negro. He was in the employ of Dr. Cutler, as house servant. Uttering a forged check is the rock upon which he split, or at least it is that on which this prosecution is based. The jury found him guilty under the second count, assessing punishment at five years in the penitentiary. The second count referred to is the following: "And the grand jurors aforesaid, on their oaths aforesaid, do further say and present that the said Jake Samuels, at the county of Boone and state of Missouri, on the ____ day of May, 1897, a certain false, forged, and counterfeit check, purporting to be made by Geo. W. Cutler, and purporting to be drawn on the Boone County National Bank of Columbia, Mo., a banking corporation duly organized according to the laws of the United States of America, which false, forged, and counterfeit check is as follows: `Columbia, Mo., May 28, 1897. Boone County National Bank of Columbia: Pay to Jake Samuels, or bearer, two & 50 dollars. $Two. 50. Geo. W. Cutler,' — feloniously did pass, utter, and publish, as true and genuine, to one Walter Robinson, with intent him, the said Walter Robinson, then and there and thereby feloniously to injure and defraud, he, the said Jake Samuels, then and there well knowing the said check to be false, forged, and counterfeit, against the peace and dignity of the state. J. H. Murry, Prosecuting Attorney." This prosecution is bottomed on section 3646, Rev. St. 1889.

1. No fault is seen in the form of the indictment, and this assignment of error is ruled against defendant's contention.

2. But error was committed in several respects, which will now receive attention: Inasmuch as the second count aforesaid charged that the order was uttered "to one Walter Robinson, with intent him, the said Walter Robinson, then and thereby feloniously to injure and defraud," it was necessary to prove the charge as laid. It is elementary law that the evidence must correspond with the allegations, and be confined to the point in issue. 3 Greenl. Ev. (14th Ed.) § 51. It is true, our statute (section 3983, Rev. St. 1889) prescribes that "it shall be sufficient in any indictment for any offense where an intent to injure, cheat or defraud shall be necessary to constitute the offense, to allege that the defendant did the act with such intent, without alleging the intent of the defendant to be to cheat or defraud any particular person," etc. State v. Scott, 48 Mo. 422; State v. Yerger, 86 Mo. 33; State v. Gullette, 121 Mo. 447, 26 S. W. 354. But although it was wholly unnecessary for the indictment to allege that the intent was to cheat or defraud "any particular person," to wit, Walter Robinson, yet, being alleged, it became descriptive of an intent to defraud Walter Robinson, and nobody else; and so there was an entire failure of proof, — a failure to make the probata support the allegata. The issue joined by defendant's plea of not guilty was not whether he was possessed with a general intent to defraud, which, under our statute, would have been all that was necessary, but whether he had an intent to defraud Walter Robinson, — that, and nothing more. Says Bishop: "If a necessary allegation is made unnecessarily minute in description, the proof must satisfy the descriptive as well as main part, since the one is essential to the identity of the other." 1 Bish. New Cr. Proc. § 485. A great number of cases furnish apt illustrations of this fundamental principle. Thus, in State v. Johnston, 51 N. C. 485, it was was held that though, in an indictment under a statute for trading with a slave, it was unnecessary to set forth the name of the owner of the slave, yet that, if so set forth, it must be proved as laid. So, in John v. State, 24 Miss. 569, a statute of that state provided that "it shall not hereafter be necessary to allege in the indictment the name of the owner of any slave guilty...