State v. Willard
| Decision Date | 26 May 1910 |
| Citation | 128 S.W. 749,228 Mo. 328 |
| Parties | STATE v. WILLARD. |
| Court | Missouri Supreme Court |
Rev. St. 1899, § 2001 (Ann. St. 1906, p. 1338), makes the forging or altering of a check drawn on an incorporated bank forgery in the second degree. Section 2009 (p. 1341) punishes as forgery in the third degree, the forging or altering of any instrument, etc., not thereinbefore declared to be forgery in some other degree. Held, that under an indictment charging forgery of a check, etc., and evidence showing forgery of such instrument, a conviction for forgery in the third degree cannot be sustained.
5. INDICTMENT AND INFORMATION (§ 188)— CONVICTION OF LOWER GRADE OF OFFENSE CHARGED—STATUTES.
Rev. St. 1899, § 2535 (Ann. St. 1906, p. 1509), providing that judgments shall not be stayed, etc., for any error committed at the instance or in favor of defendant, or because the evidence shows defendant guilty of a higher degree of the offense than that of which he was convicted, does not authorize the conviction of a lower degree of offense, which is not embraced within the charge of the higher degree of the crime.
Appeal from Circuit Court, Howell County; John T. Moore, Judge.
James R. Willard was convicted of forgery, and appeals. Reversed and remanded for new trial.
The defendant has brought this cause to this court by appeal from a judgment of the circuit court of Howell county convicting him of forgery in the third degree. The prosecuting attorney of Howell county on July 26, 1909, filed in the circuit court of said county an amended information containing one count, charging defendant with having forged, counterfeited, falsely made, and altered a certain check on the 31st day of May, 1907, under the name of F. M. Willard, and payable to one Hamon Judd, on the First National Bank of West Plains, Mo., for the sum of $20; said check being dated May 29, 1907. This cause was tried before Hon. John T. Moore, judge of the Twentieth judicial circuit, a change of venue having been taken from Hon. W. N. Evans, the regular judge of the circuit court in which the county of Howell was situated. This is the second appeal in this cause. Upon the former appeal, the judgment of the circuit court was reversed, and the cause remanded by this court on the ground of the insufficiency of the information. See State v. Willard, 219 Mo. 721, 119 S. W. 416. The case at bar was tried at the July term of the Howell county circuit court, and at such trial the facts developed were substantially as follows: That F. M. Willard, the prosecuting witness, is a cousin of defendant; that on the 29th day of May, 1907, said prosecuting witness, who then lived in Howell county, went across the county line into Oregon county, near a small country town by the name of Rover, where a game of "craps" and drinking seem to have been the order of the day. A number of citizens of Oregon county were present and appear to have joined in this day of festivities. While at this place of levity, and on said day, said F. M. Willard gave his personal check to one Hamon Judd for the sum of $2 on the First National Bank of West Plains, Mo., said Judd paying said Willard $1 in cash and a check for the sum of $1 in exchange therefor. This $2 check is the check alleged to have been forged and altered by raising to a $20 check, as set out in the information. The proof at the trial of this cause shows that the check alleged to have been altered and forged was seen in the possession of the defendant at the former trial of this cause, that defendant was seen to wrinkle and fold the check by one of the jurors in the former trial, and the same was not produced at the trial of this cause, but was admitted to have been lost or destroyed.
The proof shows that said Judd sold and assigned said check for $2 to defendant on May 30, 1907. Late on the afternoon of May 30, 1907, appellant had one Mrs. Thos. Overstreet (who with her husband, was conducting a small country store and postoffice near said town of Rover in Oregon county), to cash said $2 check for him. This check was observed by both Mr. and Mrs. Thos. Overstreet to be for the sum of $2. Early on the morning of May 31, 1907, defendant came to the store of said Overstreet and requested them to cash a $25 check of that date, given him by the Davidson Cattle Company, and payable at said National Bank at West Plains. Mr. Overstreet cashed said $25 check for appellant, giving him in exchange the said $2 Willard check, a $20 bill in currency, a small check of appellant's, and some small change, making a total of $25. After appellant had started away from this store on this occasion last stated, Mr. Overstreet called him and asked him if he would take some checks for him (Overstreet) to said First National Bank at West Plains, and deposit for him, which appellant agreed to do, and thereupon said Overstreet gave appellant a number of checks, to wit, for $41.59, $13.19, $3.50, and $25, the total amount of which was $83.20. This Davidson Cattle Company check for the sum of $25 which Overstreet had just cashed for appellant was included in this total of $83.20. After appellant received said checks to be deposited for said Overstreet he then went back to the home of one Mr. White, near by, where appellant and the witness, Earl Gentry, were boarding. Gentry went after his horse, and appellant went into the White home, and spent only a short time there, and during which time he was in the presence of Mr. White or a Miss White. Appellant in company with said Gentry left immediately for West Plains, and arrived there during the banking hours of said day; that, on reaching West Plains, appellant and said Gentry first went to a livery stable, and from there appellant went to said First National Bank, and made a deposit of $83.20 to the credit of said Thos. Overstreet, and received a deposit slip and delivered same to said Overstreet thereafter. On this deposit slip appeared a deposit of a $20 check and $5 in currency. The proof clearly shows that the F. M. Willard $2 check to said Judd had been altered and raised to read $20, and this check is the $20 check referred to in the deposit slip of said Overstreet, that the alterations were made in the handwriting of appellant, and to this fact a number of witnesses on behalf of the state so testified, and even one witness for appellant so testified. The proof further shows that appellant deposited said Davidson Cattle Company check for $25 to his own credit, instead of placing it to the credit of said Thos. Overstreet, where it properly belonged. The proof further shows that said Overstreet neither sent the $5 in currency nor any $20 check to be deposited to his credit, but, on the contrary, he did send said Davidson Cattle Company check for $25, together with certain other checks of his, amounting to the total of $83.20, which he sent by appellant to be deposited to his credit, as aforesaid.
The testimony shows that the check in dispute circulated as a $2 check from the day it was made by the prosecuting witness, F. M. Willard, to said Hamon Judd, through the hands of said Hamon Judd to appellant, from appellant to Mrs. Thos. Overstreet, her husband, Thos. Overstreet, and back again to the hands of appellant, on the same day it was deposited by appellant as a $20 check to the credit of said Overstreet. Appellant testified as a witness in his own behalf, and admitted that he bought the check in dispute from said Hamon Judd and paid $2 for it; but denied that he had Mrs. Overstreet to cash it as a $2 check, but contended at the second trial that he let Mr. Overstreet have the check. Two witnesses for appellant testified that they saw the check in dispute while held by said Hamon Judd, and that they saw the figures, representing $20, on said check, but that they did not read the word "twenty" as written out. The appellant further offered proof that the prosecuting witness, Willard, had made statements showing malice on his part towards him, and that he was prosecuting him for that purpose. The proof further shows that appellant's reputation for truth and veracity in the community where he lived was not good, and it is admitted in the record that appellant had served two years in the state penitentiary for grand larceny.
At the close of the testimony, the court instructed the jury upon all subjects to which the testimony was applicable. The cause was submitted to the jury upon the testimony as adduced at the trial, together with the instructions of the court, and they returned a verdict finding the defendant guilty of forgery in the third degree, and assessed his punishment at two years' imprisonment in the state penitentiary. Timely motions for new trial and in arrest of judgment were filed, and by the court overruled. Sentence and judgment were entered in accordance with the verdict returned by the jury and from this judgment the defendant prosecuted his appeal to this court, and the...
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The State v. Douglas
... ... place in the absence of contradictory evidence. When a forged ... instrument is uttered, or attempted to be uttered, it is ... presumed prima-facie to have been forged in the county where ... it is so uttered, or the attempt made. [State v. Willard, 228 ... Mo. 328.] In such case, in the absence of evidence to the ... contrary, it is likewise presumed that the forgery occurred ... at the date on the instrument. [26 C. J. 961.] In this case ... there was no attempt to show that the instrument was executed ... at any other time or place, ... ...
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State v. Nolan
... ... Nolan, Loc.cit. 171 S.W.2d 655. At the time of the original appeal, the 'record proper' consisted in part of the information, the verdict and judgment. State v. Willard, 228 Mo. 328, 128 S.W. 749. The original record here does contain the questioned information, the instruction, and the verdict above mentioned. The second occasion was in 1962 when respondent filed his application for a writ of habeas corpus alleging, ... among other matters, that his ... ...
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State v. Douglas
... ... When a forged instrument is uttered, or attempted to be uttered, it is presumed prima facie to have been forged in the county where it is so uttered, or the attempt made. State v. Willard, 228 Mo. 328, 128 S. W. 749. In such case, in the absence of evidence to the contrary, it is likewise presumed that the forgery occurred at the date on the instrument. 26 C. J. 961. In this case there was no attempt to show that the instrument was executed at any other time or place, and therefore ... ...
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State v. Mallory
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