State v. Walker

• Decision Date: 04 February 1902
• Court: Missouri Supreme Court
• Parties: STATE v. WALKER.<SMALL><SUP>†</SUP></SMALL>

67 S.W. 228

167 Mo. 366

STATE v. WALKER.^†

Supreme Court of Missouri, Division No. 2.

February 4, 1902.

CRIMINAL LAW — FORGERY — INFORMATION — INDUCEMENT — SEPARATE COUNTS — LOSS — PRESUMPTION OF CORRECT RESTORATION — CERTIFICATE OF CLERK — DEFINITION OF OFFENSES — EVIDENCE — VARIANCE — CHARGE.

1. Where an information, in the first clause, alleges that at the time and place specified the defendant "did willfully, unlawfully, and feloniously have in his possession a certain false, forged, and counterfeit promissory note, purporting to be made by," etc., then sets up a copy of the note, and follows with another clause charging the offense of selling such forged note, the first clause (not containing the essentials of Rev. St. 1899, § 2003, that defendant knew the note was forged, and that he intended to defraud) should not be considered a separate count, but only as inducement or a preparatory statement to the real charge set out in the next clause.

2. Where the certificate of the clerk of court states that the information on which defendant was tried was not "the original information filed in this cause, but a copy, as permitted to be restored by the court," it must be presumed that the restoration was correctly made.

3. Under Rev. St. 1899, § 2002, defining as forgery in the second degree the selling or offering to sell any forged instrument, knowing it to be forged, with intent to "have the same altered or passed," where an information charging the sale of a forged note contained the word "uttered," instead of "altered," and also alleged that the sale was "with intent to injure and defraud," — words not contained in the statute, — such variance from the language of the statute did not change the meaning, or render the information insufficient.

4. An information charging an absolute sale of a forged note is not supported by evidence showing an offer to sell, and that the bank to which the offer was made, without paying or offering to pay anything, kept the note, and had defendant arrested.

Appeal from circuit court, Howell county; W. N. Evans, Judge.

William Walker was convicted of selling a forged note, knowing it to be forged, and with intent to defraud, and appeals. Reversed.

Jno. F. Black, C. L. Coyner, and S. A. Handy, for appellant. The Attorney General and Jerry M. Jeffries, for the State.

SHERWOOD, J.

Prosecution of defendant under section 2002, Rev. St. 1899; the information, in its charging part, being the following: "That one W. M. Walker, on the ____ day of February, A. D. 1901, at the said county of Howell, did then and there willfully and unlawfully and feloniously have in his custody and possession a certain false, forged, and counterfeit and promissory note, purporting to be made by Jas. M. Goins, J. M. Endecott, and C. Riley, which said false, forged, and counterfeit promissory note is as follows; that is to say: `$75.00. West Plains, Mo., Feb. the 12th, 1901. Ninety days after date, we promise to pay to the order of ____ seventy-five dollars, payable at the Howell County Bank, in West Plains, Mo., with interest from date at the rate of eight per cent. per annum, payable annually, and if the interest be not paid annually, or when due, to be added to and become a part of the principal, and bear the same rate of interest. When due, ____, 190_. P. O. address, ____. Jas. M. Goins. J. M. Endecott. C. Riley.' And the said W. M. Walker did afterwards, to wit, on the day and year aforesaid, at the county aforesaid, unlawfully and feloniously, with intent to injure and defraud, sell and deliver the said falsely made, forged, and counterfeit promissory note to the West Plains Bank, in the city of West Plains, in said county, with intent to have the same uttered and passed, — he, the said W. M. Walker, then and there knowing the said promissory note to be falsely made, forged, and counterfeited, — against the peace and dignity of the state."

1. It was at first thought that the above paper writing constituted two counts, and this was asserted on part of defendant; but on closer examination it has been found that what was thought to be the first count was simply prefatory matter, or matter of...