State v. Washington

• Decision Date: 23 June 1914
• Docket Number: No. 18118.,18118.
• Citation: 168 S.W. 695,259 Mo. 335
• Parties: STATE v. WASHINGTON.
• Court: Missouri Supreme Court

168 S.W. 695

259 Mo. 335

STATE v. WASHINGTON.

No. 18118.

Supreme Court of Missouri, Division No. 2.

June 23, 1914.

1. FORGERY (§ 29)—INFORMATION—DESCRIPTION OF INSTITUTION UPON WHICH INSTRUMENT IS DRAWN.

Under Rev. St. 1909, § 4643, making it forgery in the second degree to forge a check being or purporting to be drawn on any incorporated bank, and section 4651 making it forgery in the third degree to forge any instrument or writing, etc., not thereinbefore declared to be forgery in some other degree, an information for forgery in the second degree must allege that the institution upon which the check alleged to have been forged was drawn was incorporated, and that it was a bank.

2. FORGERY (§ 29)—INFORMATION—DESCRIPTION OF INSTITUTION UPON WHICH INSTRUMENT IS DRAWN.

An information for forging a check on the C. Trust Company, alleging that such company was duly organized under the laws of Missouri and doing a banking business, did not show that it was incorporated or that it was a bank, within Rev. St. 1909, § 4643.

3. FORGERY (§ 4)—ELEMENTS OF OFFENSE— NATURE OF INSTITUTION UPON WHICH INSTRUMENT IS DRAWN.

Rev. St. 1909, § 4643, making it forgery in the second degree to forge a check drawn upon an incorporated bank, cannot be extended to cover the forging of checks on an institution acting like a bank or doing the same kind of business, but which is not in fact a bank.

4. CRIMINAL LAW (§ 1105)—APPEAL—RECORD —AUTHENTICATION.

In a criminal case, a notation by the clerk on the record proper, showing the filing of the bill of exceptions, was sufficient evidence that it was filed and made a part of the record.

5. FORGERY (§ 44) — EVIDENCE — NATURE OF INSTITUTION UPON WHICH INSTRUMENT IS DRAWN.

Evidence, in a prosecution for forging a check, would not support a conviction for forgery in the second degree, where it did not show that the trust company, upon which the check was drawn, was incorporated or reputed to be incorporated; that it ever exercised the functions of a corporation; or that it was even organized as alleged in the information.

6. CRIMINAL LAW (§ 1167)—APPEAL—HARMLESS ERROR.

In a prosecution for forgery, the failure to allege or prove that the trust company, upon which the check alleged to have been forged was drawn, was an incorporated bank, which fact, under Rev. St. 1909, §§ 4643, 4651, would make the act forgery in the second degree instead of in the third degree, was not harmless, where accused was convicted of forgery in the second degree.

Walker, P. J., dissenting in part.

Appeal from Circuit Court, Cooper County; J. G. Slate, Judge.

Hugh Washington was convicted of forgery in the second degree, and he appeals. Reversed and remanded.

Convicted of forgery in the second degree, and his punishment fixed at five years in the penitentiary, defendant appeals. For reversal defendant challenges the information, and also the sufficiency of the evidence to support the verdict.

The information is founded upon section 4643, R. S. 1909, prohibiting the forging of the name of any individual to a check upon an incorporated bank, and (omitting caption, signature, and verification) is as follows:

"Daniel W. Cosgrove, prosecuting attorney within and for the county of Cooper, in the state of Missouri, on his official oath of office and upon his knowledge, information, and belief informs the court that at the county of Cooper, in the state of Missouri, Hugh Washington, on or about the 14th day of January, 1914, feloniously did forge, counterfeit, and falsely make a certain false, forged, and counterfeit check, purporting to be made by Harry White, and the said check purporting to be drawn on the Citizens' Trust Company, duly organized under the laws of the state of Missouri, and doing a general trust and banking business, which said false, forged, and counterfeit check is of the tenor following:

                "`No. _____      Boonville, Mo., Jan. 14, 1914
                        "`The Citizens' Trust Company
                  "`Pay to John Washington..........or bearer $3.00
                      Boonville Bank            100 Dollars
                                                "`Harry White
                

—with intent then and there and thereby feloniously to injure and defraud, against the peace and dignity of the state."

W. Hall Trigg, of Boonville, for appellant. John T. Barker, Atty. Gen. (S. P. Howell, of Jefferson City, of counsel), for the State.

I. Information.

BROWN, J. (after stating the facts as above).

Defendant asserts that the information does not charge that the Citizens' Trust Company is an incorporated bank. This contention seems to be well taken. The forging of orders and checks by an individual is prohibited by two different statutes. Under section 4643, R. S. 1909, it is made forgery in the second degree, while by section 4651 the forging of a check (any instrument or writing), which does not come within the purview of section 4643, supra, is made forgery in the third degree.

Section 4643, supra, is a criminal statute, and, in order to sustain a conviction under its provisions, it is necessary to allege that the institution upon which the check was drawn is incorporated, and it is also necessary to charge that it is a bank.

The Attorney General insists that the information is sufficient, because it charges that the Citizens' Trust Company "is duly organized under the laws of Missouri, and doing a * *...