State v. Tyree

• Decision Date: 05 March 1907
• Citation: 201 Mo. 574,100 S.W. 645
• Parties: STATE v. TYREE.
• Court: Missouri Supreme Court

100 S.W. 645

201 Mo. 574

STATE v. TYREE.

Supreme Court of Missouri, Division No. 2.

March 5, 1907.

1. FORGERY — DEGREE OF OFFENSE — ALTERATION OF SCHOOL WARRANT.

Rev. St. 1899, § 1995 [Ann. St. 1906, p. 1336], provides that every person who shall falsely make, alter, forge, etc., any warrant, order, bill, etc., issued or purporting to have been issued under the authority of a state, or in any county, township, school district, or municipal corporation therein, by virtue of any law of the state by which payment of any money absolutely or upon a contingency shall be promised, with intent to defraud the state, county, township, city, school district, or other municipal corporation, or any public officer, or other person, shall be adjudged guilty of forgery in the first degree. Rev. St. 1899, § 9788 [Ann. St. 1906, p. 4491], provides that it shall be the duty of a school district to draw a warrant on the county treasurer in favor of any party to whom the district has become legally indebted as teacher to be paid out of any moneys in the appropriated funds in the hands of the county treasurer. Held, that where a warrant issued by a school district drawn on the county treasurer, directing the payment of a certain sum of money out of the teacher's fund for services rendered as teacher, was altered by inserting a figure therein, the offense came within section 1995, and the offender was properly indicted for forgery in the first degree.

2. SAME—INFORMATION—SUFFICIENCY.

In a prosecution for forgery committed by altering and raising a certain school warrant, an information, which alleged that the warrant was issued according to law by the authority of a certain school district, and that the board of directors had power and authority to issue such warrant in favor of the payee therein for the amount designated, was sufficient, though not setting forth the details of the organization of the school district.

3. SAME—ELEMENTS OF OFFENSE—INTENT TO CHEAT AND DEFRAUD—INSTRUCTIONS.

In a prosecution for forgery, the failure of the trial court to require the jury to find that the acts alleged in the indictment were done with intent to cheat and defraud was error.

4. CRIMINAL LAW — INSTRUCTIONS — PREDICATED UPON EVIDENCE.

In a criminal prosecution, an instruction, though in accord with approved precedent so far as its form is concerned, should not be given, unless there is testimony on which it can be predicated.

Appeal from Circuit Court, Taney County; John T. Moore, Judge.

R. F. Tyree was convicted of forgery in the first degree, and appeals. Reversed.

This cause is now pending in this court upon appeal by the defendant from a judgment of conviction of the defendant in the circuit court of Taney county for forgery in the first degree. On March 10, 1905, the prosecuting attorney of Taney county filed an information against the defendant, R. F. Tyree, charging him with having committed forgery in the first degree on the 13th day of December, 1904, by feloniously and fraudulently changing the amount of a certain school warrant issued to him by the board of directors of School District No. 61 of Taney county; the specific alteration being the changing of the figures $3, so as to become $33. Omitting formal parts, the charge of which defendant was convicted was thus presented in the information filed by the prosecuting attorney:

"J. C. L. McKnight, prosecuting attorney within and for the county of Taney in the state of Missouri, under his oath of office, and upon his hereto appended oath, informs the court that, on the 13th day of December, A. D. 1904, at and in the county of Taney in the state of Missouri, a warrant was issued according to law by the authority of the board of directors of School District No. 61, township 22, range 22, of Taney county, Missouri; said board of directors having then and there competent power and authority so to do, in favor of one R. F. Tyree for three dollars, which said warrant was of the tenor following, that is to say:

                  "$3.00      Teacher's Fund.   No. 2
                

"Treasurer of Taney County, Missouri:

"Pay to R. F. Tyree or order, for services as teacher in District No. 61, township 22, range 22, three dollars out of any funds in your hands for the payment of teacher's wages belonging to said district.

"Done by order of the board this 13th day of December, 1904.

                             "A. L. Hulsey, President
                             "Wilson Wright, Clerk
                

"And that he, the said R. F. Tyree, afterwards, to wit, on or about the 14th day of December, A. D. 1904, at and in said county of Taney in the state of Missouri aforesaid, feloniously, falsely, and fraudulently did alter said warrant by writing the figure `3' between character `$' and the figrue `3' in the upper left-hand corner of said warrant and by writing and inserting the word `thirty' before the word `three' in said warrant, then and there and thereby feloniously, falsely and fraudulently making said warrant to read as follows, that is to say:

                  "$33.00   Teacher's Fund.  No. 2
                

"Treasurer of Taney County, Missouri.

"Pay to R. F. Tyree or order, thirty-three dollars out of any funds in your hands for the payment of teacher's wages belonging to said district.

"Done by order of the board this 13th day of December, 1904.

                                 "A. L. Hulsey, President
                                 "Wilson Wright, Clerk.
                

—with intent then and there and thereby to feloniously, falsely and fraudulently defraud said School District No. 61, township 22, range 22 in Taney county, Missouri, contrary to the form of the statute in such cases made and provided and against the peace and dignity of the state."

It is unnecessary, in order to determine the legal propositions presented by the record, to set out in detail the evidence introduced by the state and the defendant. It is sufficient to say that there was testimony on the part of the state tending to establish the charge contained in the information, and there was testimony on the part of the defendant tending to show that the defendant was not guilty of the forgery charged in the information; in other words, there was a conflict in the testimony. At the close of the testimony the court instructed the jury as follows: "The court instructs the jury that if you find from the evidence that Robert Tyree in the county of Taney and state of Missouri, on or about the 14th day of December, 1904, or at any time within three years before the filing of the information, to wit, March 10, 1905, did feloniously, falsely, and fraudulently alter or change a certain school warrant described in the information, you will find the defendant guilty of forgery in the first degree, and assess his punishment at a term in the state Penitentiary not less than 10 years. The court instructs the jury that the defendant is a competent witness in his own behalf, and you may consider his testimony; but, in considering what weight you will give his testimony, you may take into consideration the fact that he is the defendant on trial, and interested in the result of the trial. The court instructs the jury that before you can convict the defendant you must find him guilty beyond a reasonable doubt; but a doubt to authorize an acquittal must be a substantial doubt, based upon the evidence, and not a mere possibility of his innocence. The court instructs the jury that what the defendant said against himself after the alleged commission of the offense charged, the jury must consider altogether. He is entitled to the benefit of what he said for himself, if true, as is the state to the benefit of anything he said against himself in any conversation proved by the state. What he said against himself, the law presumes to be true, because against himself; but what he said for himself, the jury are not bound to believe, because said in a conversation proved by the state, they may believe it or...