State v. Stegner

• Decision Date: 23 December 1918
• Docket Number: No. 20967.,20967.
• Parties: STATE v. STEGNER.
• Court: Missouri Supreme Court

207 S.W. 826

276 Mo. 427

STATE v. STEGNER.

No. 20967.

Supreme Court of Missouri, Division No. 2.

December 23, 1918.

Appeal from Criminal Court, Jackson County; Edward E. Porterfield, Judge.

Theodore Stegner was convicted of forgery in the second degree, and he appeals. Reversed and remanded.

M. A. Fyke and E. F. Halstead, both of Kansas City, for appellant.

Frank W. McAllister, Atty. Gen. (Thomas J. Cole, of Joplin, of counsel), for the State.

WALKER, P. J.

Appellant was charged under section 4643, R. S. 1909, by information in the criminal court of Jackson county, with forgery in the second degree. Upon a trial, he was convicted and his punishment assessed at five years' imprisonment in the penitentiary. From this judgment, he appeals.

Appellant was in arrears for rent on an apartment he occupied in Kansas City. Upon being notified by the landlord that, unless payment was made, he would be required to vacate the premises, he brought a check to the landlord for $25 and tendered it in payment of the rent. The latter refused to accept the same, and sent the appellant to his (the landlord's) attorney, who accepted the check. This check was made payable to the order of appellant, was indorsed by him, and was drawn on the American National Bank of Austin, Tex., and purported to have been signed by one C. W. Howell. At the time of the delivery of the check by appellant to the attorney, he showed the latter a land contract from which it appeared that appellant had sold two lots, describing them, in Wing & Steen's addition to Kansas City, for $1,400, $25 of which was to be paid at the time the contract was made. Appellant, in tendering the check in payment of the rent, stated that it represented the $25 payment made to him under the contract. The attorney, upon receiving the check in payment of the rent, gave appellant a receipt therefor, and placed the check in a bank for collection. :n due course of time It was returned unpaid. Testimony was adduced for the state that there was no addition to Kansas City designated as "Wing & Steen's addition." On behalf of defendant, however, a plat, entitled "Wing & Steen's Addition to Kansas City," was introduced in evidence, and a witness testified that he had employed appellant to sell certain lots therein; the description of same being identical with those named in the appellant's land contract. This witness testified that he knew nothing of the "C. W. Howell," by whom the check purported to have been drawn, and, if any contract had been made to effect a sale of the lots to said Howell, witness had no knowledge of same. Experts testified that in their opinion certain letters offered in evidence, which were shown to have been written by the appellant, were in the same handwriting as that of the name of "C. W. Howell," appearing on the check. Admissions of appellant were testified to that he had written the land contract, and experts gave it as their opinion that the body of this contract was in the same hand"" writing as the name of C. W. Howell on the check.

Testimony was given for the state that "C. W. Howell" had no account with the Austin bank named in the check. There was also testimony tending to show that there was no such person residing in the city of Austin as "C. W. Howell."

The count of the information upon which the conviction was had, omitting formal parts, is as follows:

That Theodore Stegner "feloniously and willfully did forge, counterfeit and falsely make a certain false, forged and counterfeited check purporting to be made by C. W. Howell and drawn on the American National Bank, a banking corporation duly organized and existing according to law, and a bank doing a general banking business in the city of Austin and state of Texas, county of Travis, which said false, forged and counterfeited check or draft is of the tenor following, that is to say `The National Reserve Bank of Kansas City, Missouri, July 10, 1915. At sight pay to the order of Theodore Stegner $25.00. Twenty-five and no/100. Value received and charge the draft to the account of C. W. Howell. To the American National Bank, Austin, Texas. Indorsed: Theodore Stegner, E. M. Bartlett.' C. W. Howell, with the felonious intent thereby then and there to injure and to defraud, against the peace and dignity of the state."

The pertinent portions of the statute upon which the information is bottomed are as follows:

"Every person who shall forge or counterfeit, or falsely make or alter, or cause or procure to be forged, counterfeited or falsely made or altered: * * * Any order or check being or purporting to be drawn on any * * * bank" (incorporated under the laws of this state or of any other state, territory, government or country), "or any cashier thereof, by any other person, company or corporation, shall, upon conviction, be adjudged guilty of forgery in the second degree." Section 4643, R. S. Mo. 1909.

I. Information.—It is contended that the information is defective in not averring the corporate capacity of the bank on which the check was alleged to have been drawn. The exact language employed is that the check was "drawn on the American National Bank, a banking corporation duly organized and existing according to law, and a bank doing a general banking business in the city of Austin," etc. Certainly, a bank cannot be "a banking corporation organized and existing according to law" unless the same has been incorporated as such. It would be refining technicalities to a degree beyond reason to contend otherwise. While the averment, the omission of which is complained of, is not affirmatively made, it Is so clearly indicated as to admit of no other construction than that it is a statement of the corporate capacity of the bank. It does not therefore violate the rule of criminal pleading that nothing shall be left to intendment or implication, and that the appellant shall be clearly apprised of the nature and cause of the accusation against him. 1 Bish. Cr. Pro. (2d Ed.) § 77, p. 59; State v. Birks, 199 Mo. 263, 97 S. W. 578; State v. Furgerson, 152 Mo. 92, 53 S. W. 427; Const. Mo. art. 2, § 22. In so doing, it necessarily follows, as we hold, that it sufficiently conforms to the language of the statute. Section 4643. The overruling of appellant's contention in this regard does not militate against what we said in reference to the information in State v. Washington, 259 Mo. 335, 168 S. W. 695, in which it was held that there was no averment of corporate capacity.

Further contention is made that the name of C. W. Howell, by whom it appeared the check had been made, was neither a person nor a fictitious person. So far as the contention is intended to question the sufficiency of the averment of C. W. Howell's character as a natural person, it will suffice to say that the information sets forth the tenor of the check. It was not necessary, therefore, to make a more specific allegation in this regard than that indicated by the instrument itself. C. W. Howell's name appeared thereon as maker. Our knowledge of the use of words common to every one of average intelligence leads to no other conclusion than that a name thus signed to what purports to be a check was intended to indicate that the maker was a natural person. The essential element of the crime charged was an intent to cheat and defraud. Under the statute, therefore, upon which this information was based, and that of procedure in regard to crimes of this character (section 4921, R. S. 1909), it was sufficient if the charge be made in general terms; special averments as to the character of the maker or of the person defrauded being unnecessary. The false instrument, as here pleaded, showing on its face that it had sufficient efficacy to enable it to be used to the injury of another, it was consequently immaterial whether the name signed thereto as a maker was that of a real or fictitious person. Only essential allegations so pleaded as to fully apprise the accused of the nature of the accusation against him are required. State v. Chissell, 245 Mo. loc. cit. 556, 150 S. W. 1066; State v. McConnell, 240 Mo. loc. cit. 271, 144 S. W. 836; State v. McGrath, 228 Mo. loc. cit. 428, 128 S. W. 966; State v. Harris, 209 Mo. 433, 108 S. W. 28; State v. Yerger, 86 Mo. 33. Rulings elsewhere upon similar statutes are of like effect. Williams v. State, 126 Ala. loc. cit. 56, 28 South. 632; People v. Stearns, 21 Wend. (N. Y.) 409; State v. Givens, 5 Ala. loc. cit. 759. Although no allegation as to the fictitious character of the maker be made, it is not error to admit evidence of same. Johnson v. State, 35 Tex. Cr. R. loc. cit. 271, 33 S. W. 231; Chapman v. State (Tex. Cr. App.) 34 S. W. 621. The case of State v. Minton, 116 Mo. 605, 22 S. W. 808, cited by appellant to sustain the contention that the information should have averred the fictitious character of the maker of the check, is not relevant. It construes a statute (section 4663) denouncing the offense of affixing a fictitious name to a pecuniary demand or obligation. That is not the offense here charged.

II. Testimony.—A witness named Vining, qualified as an expert on disputed handwriting, was asked to compare a letter, conceded to have been written by the appellant, with the check alleged to have been forged, and to state his conclusion in regard to the identity of the writings. Having done so, he testified that in his opinion both instruments were written by the same person. This is assigned as error; not as to the admission of this character of testimony, which is authorized, under a well-established rule of evidence (1 Greenl. Ev. § 880), frequently approved by this court (State v. Scott, 45 Mo. loc. cit. 304; Corby v. Weddle, 57 Mo. loc. cit. 458; State v. Tompkins, 71 Mo. loc. cit. 616; State v. Owen, 73 Mo. loc. cit. 441), and relaxed by statute (section 6382, R. S. 1909) as to the proof of the genuineness of the instrument sought to be compared with that alleged to have been forged (...