State v. Taylor
| Decision Date | 05 June 1925 |
| Docket Number | 26158 |
| Citation | 274 S.W. 47 |
| Parties | STATE v. TAYLOR |
| Court | Missouri Supreme Court |
C. I Bennington, of Sedalia, for appellant.
Robert W. Otto, Atty. Gen. (Will F. Frank, of Kirksville, of counsel), for the State.
Statement.
On June 2, 1924, the prosecuting attorney of Pettis county, Mo filed in the circuit court of said county a verified information charging said defendant with the crime of uttering a forged draft. Omitting caption and verification the information reads as follows:
'Now comes Samuel W. James, prosecuting attorney for the state of Missouri, in and for the body of the county of Pettis, and upon his official oath informs the court that Harry Taylor, -- day of January, 1924, at the county of Pettis, state of Missouri, had in his custody and possession a certain false, forged, and counterfeit draft, purporting to be made by the Bank of Abilene, Kansas, a bank incorporated under the laws of the United States, which said false, forged, and counterfeit draft is as follows, that is to say:
' 'The Abilene National Bank. 83-145.
' 'Abilene, Kansas, Jan. 21, 1924. No. 38933.
' 'Pay to the order of A. D. Collins $ 372.24, three hundred seventy-two dollars twenty-four cents, $ 372.24.
'And the said Harry Taylor did afterward, to wit, on the day and year aforesaid, at the county foresaid, unlawfully and feloniously, with intent to injure and defraud, sell and deliver the said falsely made, forged, and counterfeit draft to one Harry Zimmerman, for the consideration and sum of three hundred seventy-two dollars twenty-four cents ($ 372.24), with intent to have the same uttered and passed, he the said Harry Taylor then and there knowing the said draft to be falsely made, forged, and counterfeited, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state.
'[Signed] Samuel W. James,
'Prosecuting Attorney of Pettis Co., Missouri.'
Upon a trial before a jury, the latter returned the following verdict:
'We, the jury, find the defendant guilty as charged in the information, and assess his punishment at five (5) years in the penitentiary.
'J. H. Wood, Foreman.'
Timely motions for a new trial and in arrest of judgment were filed, and both overruled. Thereafter allocution was granted defendant, judgment entered, and sentence pronounced upon him in conformity to the verdict aforesaid. From said judgment an appeal was granted defendant to this court.
The evidence on behalf of the state is substantially as follows:
G. W. Rees testified that he lived at Abilene, Kan., and was cashier of the Bank of Abilene; that he was cashier of said bank in January, 1924; that it is a national bank, organized under the laws of the United States; that he saw defendant, Harry Taylor, in said bank in January, 1924; that at said time defendant stepped up to the window of the bank and asked for a draft in the sum of $ 2.24, which witness wrote for him and stamped the same with his protectograph. The above draft was shown to witness, identified by him as the one he had written for $ 2.24, and the same was marked as State's Exhibit 1. He further testified that the above draft had been altered; that the amount had been raised to $ 372.24; that the name 'A. D. Collins' had been scratched out and written again; that the protectograph writing was the same, except that the figures '37' had been added thereto, which made it read '$ 372.24'; that, after the above draft was made out and delivered to defendant, the bank of Abilene next heard of it, when they got a telephone call from Sedalia, relative to the draft, the latter part of January, 1924; that if the Bank of Abilene had ever been asked whether this draft was good, except over the telephone, he did not know it.
Mr. Harry Zimmerman testified that he lived in Sedalia, Mo., and was in the tire business at that place; that he was in this business in January, 1924; that he saw State's Exhibit 1 in January, 1924; that at that time defendant, Harry Taylor, came to the place of witness' business for the purpose of purchasing some tires; that as payment for the tires defendant tendered to witness the draft in question; that witness, not having enough money to cash the draft, took the latter and advanced to defendant $ 50 on it; that at the time of this transaction defendant was at the place of business of witness; that he asked defendant if he was not Harry Taylor; that defendant answered in the negative, and said his name had always been A. D. Collins. A few days later witness presented the draft for payment and the bank would not accept it. Witness further testified that he had some business dealings with defendant in February, 1923; that defendant bought some casings from him at said date and gave him (witness) a check therefor in the sum of $ 20, signed by Harry Taylor; that he (witness) held the check about 30 days before it was paid.
Mr. E. P. Miller, assistant cashier of the Third National Bank of Sedalia, Mo., in January, 1924, identified State's Exhibit 1 as the draft presented to him by Mr. Zimmerman for deposit; that he refused to accept the draft for deposit.
Defendant's evidence:
The defendant, Harry G. Taylor, testified in his own behalf substantially as follows: That he lived in Moberly, Mo., and was the head of a family, consisting of wife, daughter, and son; that his family was in poor health, and his daughter had been afflicted with tuberculosis; that a man by the name of Collins asked defendant if he could get a draft cashed after banking hours; that he (defendant) took the above draft to Zimmerman, and the latter told him he could not cash it; that he then went back and talked with Collins; that the latter told him to get a little money on the draft, so he could have some money that evening; that he (defendant) then went back to Zimmerman and got $ 50 on the draft; that he did not know whether the draft was a forged instrument or not; that he had been in Abilene, Kan., some years before, but was not there in January, 1924; that he was not acquainted with Rees; that he did not receive any money on the draft personally, but turned over what he received to Collins; that he knew Zimmerman personally, and had dealings with him on two or three occasions; that he knew Collins as a man who lived in Sedalia, but did not know him very well. Defendant admitted that he had at one time been convicted of a crime.
In order to avoid repetition, we will refer to some other portions of the testimony, not heretofore set out, in the opinion.
The court gave nine instructions, numbered from 1 to 9, inclusive, none of which were objected to by defendant. The defendant asked but a single instruction, which was refused by the court. The instructions and rulings of the court, as far as necessary, will be considered in the opinion.
Opinion.I. The information is heretofore set out, and as its validity is not challenged by appellant, in his brief or motion in arrest of judgment, we do not deem it necessary to cite authorities in support of same. We hold, however, that it is sufficient as to both form and substance.
II. It is contended by appellant that the trial court committed error in permitting witness Rees, cashier of the bank at Abilene, Kan., to testify that it was incorporated. Appellant cites several authorities which hold that the information, in order to pass muster, should allege that the bank was incorporated. These cases, when properly considered, do not hold that in a case of this character the incorporation of the Abilene bank could not be shown by oral testimony. On the other hand, the ruling of the court in admitting said oral testimony is clearly sustained by the authorities cited in respondent's brief as follows: Section 4032, R. S. 1919; State v. Stegner, 276 Mo. loc. cit. 437, 207 S.W. 826; State v. Moreaux, 254 Mo. loc. cit. 412, 162 S.W. 158; State v Decker, 217 Mo. 322, 116 S.W. 1096; State v. Wise, 186 Mo. loc. cit. 46, 84 S.W. 954; State v....
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