State v. Woodrow
| Decision Date | 07 December 1895 |
| Docket Number | 10350 |
| Citation | 42 P. 714,56 Kan. 217 |
| Parties | THE STATE OF KANSAS v. W. A. WOODROW |
| Court | Kansas Supreme Court |
Decided July, 1895.
Appeal from Reno District Court.
W. A WOODROW, convicted of forgery, appeals. The opinion, filed December 7, 1895, contains a sufficient statement of the case.
Judgment reversed.
Rose & Roberts, for appellant.
F. B Dawes, attorney general, L. M. Fall, county attorney, and C M. Williams, for The State.
OPINION
At March term, 1895, the defendant was convicted of forgery in the third degree, and sentenced to imprisonment in the penitentiary for a term of two years, under section 135 of the crimes act (P 2272, Gen. Stat. 1889), the offense being accomplished by burning and totally destroying and obliterating two certain promissory notes, one of them alleged in the information to have been made by one J. S. Reppy for $ 80, payable to the defendant, W. A. Woodrow, or order, and by him indorsed and delivered to Sarah E. Charles, and the other made by J. L. Cecil for $ 75, payable to said defendant, or order, and by him indorsed and delivered to said Sarah E. Charles. The instruments were described in the information only by their purport, it being alleged that the tenor could not be set out by reason of the destruction and obliteration aforesaid. A motion to quash the information on the ground of vagueness and uncertainty as to the instruments destroyed was overruled. On the trial it was shown that the maker of the $ 80 note was "J. I. Rippey," and that the maker of the $ 75 note was "J. S. Cecil," and that $ 4 had been paid and credited on it. Upon the close of the evidence for the state, the defendant moved the court to instruct the jury to return a verdict of not guilty, said motion being based principally upon the variances between the allegations and the proofs, which were specifically stated in the motion; but this was overruled, and after all the evidence had been introduced the defendant asked an instruction to the same effect on like grounds, but this was refused. No evidence was offered tending to show the identity of "J. S. Reppy" with "J. I. Rippey," nor that of "J. L. Cecil" with "J. S. Cecil," and no application was made to amend, the information. It will be observed that the Christian names were indicated only by initials.
Under the authorities, the variance between the allegations and the proofs was fatal, and nothing was done or attempted to cure the mistakes of the prosecutor in drawing the information. In Porter v. The State, 15 Ind. 433, the counterfeit notes were described as payable to "E. Lymour," while those offered in evidence were payable to "E Seymour"; the variance was held fatal, and the judgment of conviction was reversed. In Yount v. The State, 64 Ind. 443, an indictment for the forgery of a promissory note payable to and indorsed by "E. J. Schweitzer" alleged that the offense Was committed with intent to defraud "Emily J. Schweitzer," and in was held bad. In The State v. Houseal, 1 Brev. (S. C. Law,) 219, the forgery charged was in signing the name of "Nathaniel Durkie" with intent to defraud him, but the signature, as set out by tenor, was "N. Durkie"; and it was adjudged that the repugnancy was fatal to the indictment, and judgment was arrested. In McClellan v. The State, 32 Ark. 609, the defendant was prosecuted for forging two orders purporting to be signed by "Richard Hudgins," but the signature to the instruments set forth by their tenor was "Richard Hudgson," and a conviction upon the information was set aside, and a new trial granted. In Murphy v. The State, 6 Tex.App. 554, it was charged that the forged instrument was signed "Pat Whelan," and...
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