State v. Watson

• Decision Date: 30 April 1877
• Citation: 65 Mo. 115
• Parties: THE STATE v. WATSON, PLAINTIFF IN ERROR.
• Court: Missouri Supreme Court

65 Mo. 115

THE STATE

v.WATSON, PLAINTIFF IN ERROR.

Supreme Court of Missouri.

April Term, 1877.

Appeal from Iron Circuit Court.

Nathan C. Kouns for plaintiff in error.

I. The necessary elements of the crime denounced by section 9, page 468 Wag. Stat., are: 1st. That defendant shall “sell, exchange or deliver;” or, 2d. “Receive upon a sale, exchange or deliver”; 3rd. “For any consideration;” 4th. “Any forged paper described in section 8;” 5th. “Knowing the same to be forged;” 6th. “With intent to have the same uttered or passed.” The distinctive element of the crime, that without which this particular offense cannot be committed at all, is that the forged paper must be knowingly sold, exchanged or delivered, or received upon a sale, exchange or delivery for a consideration “with intent to have the same uttered or passed.”

II. The essential elements of the crime prohibited by section 21, page 471 Wag. Stat. are that the defendant shall, 1st. “With intent to defraud;” 2d. “Pass, utter or publish as true;” or, 3rd. “Offer or attempt to pass, utter or publish as true;” 4th. “Any falsely uttered writings or imitations of coin.”

III. The indictment, stripped of all verbiage, charges that the defendant did, 1st. “Sell, exchange and deliver;” 2d. “For a consideration of $550;” 3rd. “The forged check;” 4th. “With intent to defraud;” 5th. “Knowing it to be forged.” But it fails to charge that these things were done “with intent to have the same uttered or passed,” which is essential to a conviction under section 9; and it fails to charge that he did “pass, utter, or publish as true” the forged paper, which is essential to a conviction under section 21. The two crimes are of an essentially different nature, and this indictment which uses some of the words of both sections, omits the words which are peculiarly essential in both, and utterly fails to charge any offense known to the law under either. The indictment cannot support a conviction under either section. It cannot be pretended that the words “sell, exchange or deliver” are synonymous with the words “pass, utter or publish;” and, in fact, these words are everywhere used in the statutes as formulas, descriptive of essentially different crimes. They are used in many different sections, but never interchangeably. The crime defined by the words “sell, exchange or deliver” is one in which all parties to the transaction are equally guilty; that defined by the words “pass, utter and publish” is one of which one party only is guilty, while the other is defrauded.

J. L. Smith, Attorney General, for respondent.

I. The sale, exchange and delivery of a forged or counterfeited bill of exchange, by a party knowing it to be forged, and for a consideration, is a passing and uttering, and is an unlawful act. State v. Fitzsimmons, 30 Mo. 238. If the act itself is unlawful, the law presumes an evil intent, and the allegation of such matter is, at most, but a matter of form. 5 Bac. Abr. 96; 6 East 464; Kelly's Crim. Law, § 197. The act of selling for value, with intent to defraud, carries the idea of an intent to have the same passed.

II. When the draft had been sold by the plaintiff in error to the Ironton Manufacturing Company, it had been by him passed. The “intent to have the same passed” had been carried out, and was embraced in the allegation, “did sell, exchange and deliver,” &c., “with intent to defraud,” &c. Nothing could be alleged that would indicate the intent to have the same passed as clearly as this.

III. If an indictment sets forth the facts constituting the crime with such certainty that the accused had notice of what he was called upon to meet and controvert, and the court, applying the law to the facts charged, could see that an offense had been committed, it is sufficient. The indictment at bar complies with the requirements of this rule.

INDICTMENT: statutory language.

HENRY, J.

In the Iron Circuit Court an indictment was preferred against defendant, of which the following is a copy: The Grand Jurors, &c., present that one D. A. Watson, late, &c., on the 16th day of February, A. D. 1876, at the county, &c., did falsely, fraudulently and feloniously sell, exchange and deliver, for the consideration of five hundred and fifty dollars, to the Ironton Manufacturing Company, as true, a certain falsely made and forged draft, purporting to be made and issued by the First National Bank of Macomb, in the State of Illinois, a bank duly incorporated under the laws of the United States, and purporting to be drawn on the American Exchange National Bank of New York, which said last mentioned falsely made and forged draft is as follows, (copying the draft), with the intent to defraud the said Ironton Manufacturing Company; and that the said D. A. Watson, at the said time he so sold, exchanged and delivered the said last mentioned falsely and forged draft as aforesaid, then and there, to-wit, on the said sixteenth day of February, A. D. 1876, well knowing the same to be falsely made and forged, contrary, etc.” Defendant was tried and convicted, and sentenced to the penitentiary for eight years, and the cause is here on writ of error, and the only question is as to the sufficiency of the indictment. Section 21, page 471, Wagner's Statutes, provides that “every person who, with intent to defraud, shall pass, utter or publish, or offer, or attempt to pass, utter or publish as true, any forged, counterfeited, or falsely uttered instrument or writing, or any counterfeit, or any imitation of any gold or silver coin, the altering, forging or counterfeiting of which is hereinafter declared to be an offense, knowing such instrument, writing or coin to be altered, forged or counterfeited, shall, upon conviction, be adjudged guilty of forgery in the same degree as hereinafter declared for the forging, altering or counterfeiting the instrument, writing or coin so passed, uttered or published, or offered or attempted to be passed, uttered or published.” By the 8th section, page 468, the counterfeiting, forging or uttering such an instrument as that described in the foregoing indictment, is made forgery in the second degree, the punishment for which, by section 29, page 472, is imprisonment in the penitentiary not less than five nor more than ten years. If the indictment is good under section 21 it is unnecessary to notice the other points made in the brief of defendant's counsel.

INDICTMENT: passing forged draft.

It will be observed that it contains every material allegation required by that section; but instead of the words “pass,” “utter” and “publish” substitutes the words “sell,” “exchange” and “deliver.” Do these words, in connection with the acts charged, sufficiently describe the offense, or is the pleader confined to the words in the section? It is generally, not, however, invariably, sufficient to describe the offense in the words of the statute; but it does not follow that other words may not be substituted. Selling, exchanging or delivering a bank bill or a piece of money is in common parlance passing the bill or money. The plain or ordinary and usual sense of the word “pass,” as applied to coin or bank notes, is to deliver in exchange for something else, and is equally expressed by the words “sell,” “exchange” or “deliver.” The judgment will be affirmed.

The other judges concur.

AFFIRMED.

On Motion for Rehearing.

Nathan C. Kouns for the motion.

I. The common, ordinary meaning of “pass” is to go by, to omit; of “utter,” to speak, to pronounce; or “publish,” to make public, to advertise; but the legal meaning of “utter” and “publish” is to declare or assert, by words or actions, that a forged paper is good, and it is passed when it is taken by the person to whom it is paid with this representation. Bishop's Statutory Crimes, 306.

II. It has been solemnly decided by courts of high authority that a defendant cannot be convicted on an indictment which charges that he “sold, exchanged and delivered” forged paper, by proof that he passed it, because the two offenses are essentially different and vice versa. Van Valkenberg v. The State, 11 Ohio 404; Hutchins v. The State, 13 Ohio 198. See, also, U. S. v. Nelson, 1 Abbott 135.

III. At common law the crime of forgery could only be committed by falsely making or altering a written instrument. Passing a forged paper, or selling it with intent to have it passed, was a common law cheat, and it is only forgery because the statute makes it so. This forgery is, therefore, strictly...