State v. Willard

• Citation: 119 S.W. 416,219 Mo. 721
• Parties: STATE v. WILLARD.
• Decision Date: 18 May 1909
• Court: United States State Supreme Court of Missouri

119 S.W. 416

219 Mo. 721

STATE v. WILLARD.

Supreme Court of Missouri, Division No. 2.

May 18, 1909.

FORGERY (§ 26)—INDICTMENT.

An indictment under Rev. St. 1899, § 2001 (Ann. St. 1906, p. 1338), for forgery in the second degree, which by section 2024 (Ann. St. 1906, p. 1345) is punishable by imprisonment in the penitentiary for from five to ten years, must allege defendant "feloniously" forged the instrument; it not being enough to charge that he made it "with intent * * * feloniously to injure and defraud, against the peace and dignity of the state."

Appeal from Circuit Court, Howell County; W. N. Evans, Judge.

James R. Willard was convicted of forgery in the second degree, and appeals. Reversed and remanded.

E. W. Major, Atty. Gen., and J. M. Atkinson, Asst. Atty. Gen., for the State.

GANTT, P. J.

This is an appeal from a judgment and sentence of the circuit court of Howell county. On the 31st of July, 1907, the prosecuting attorney of Howell county filed in the circuit court of said county an amended information in three counts, charging the defendant in the first count with having made and altered a certain check on the 31st day of May, 1907, under the name of F. M. Willard, payable to one Hamon Judd, on the First National Bank of West Plains, Mo for the sum of $20, dated May 29, 1907. The second count charged the defendant with having sold, exchanged, and delivered said forged and altered check to said bank, and the third count charged him with having made, altered, and forged said check, by which pecuniary demand and obligation was purported to be created. The defendant was tried at the December term of the Howell county circuit court, and found guilty under the first count of said information, and his punishment assessed at five years' imprisonment in the state penitentiary. After unsuccessful motions for new trial and in arrest of judgment, he appealed to this court.

The first count of the information is in these words: "J. L. Bess, prosecuting attorney, within and for the county of Howell, in the state of Missouri, for his amended information informs the court that one James R. Willard, on the 31st day of May, A. D. 1907, at the said county of Howell, did then and there willfully and unlawfully forge, counterfeit, and falsely make and alter a certain check purporting to be made by one F. M. Willard, under the name of F. M. Willard on the First National Bank of West Plains, a corporation duly incorporated and existing under the laws of the United States, payable to one Hamon Judd, or bearer, for twenty dollars, and dated May 29, 1907, which said false, forged, counterfeit and altered check is of the tenor following: `West Plains, Mo., May 29, 1907. No. ___. First National Bank: Pay to Hamon Judd, or bearer, twenty dollars ($20.00). F. M. Willard'—with intent then and there feloniously to injure and defraud, against the peace and dignity of the state." As the court submitted the case to the jury on the first count only, it is not necessary to notice the other two counts. In his motion for new trial and in arrest of judgment the defendant challenged the sufficiency of the first count in the information on the ground that he was not charged with having "feloniously" forged and falsely made said check, and this presents the one important question in this case.

In State v. Murdock, 9 Mo. 739, Judge Scott, speaking for this court, said: "Every offense, which is...