The State v. Carragin
| Decision Date | 17 March 1908 |
| Parties | THE STATE v. JAMES B. CARRAGIN, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Wm. M. Kinsey Judge.
Reversed and remanded.
Thos B Harvey for appellant.
The court erred in denying defendant's motion to require the State to elect, at close of all the evidence; and again erred in telling the jury in its fourth instruction that they could convict of both offenses, and which said instruction was pointedly excepted to by defendant. The great weight of authority and the best considered cases sustain the following, to-wit: (1) Several counts may charge the commission of the offense in various ways in order to meet the proof. (2) In the absence of statute defining what offenses may be joined, an indictment containing counts for offenses of the same character and growing out of the same transaction, will not be demurrable; but the prosecution will be required to elect. (3) In no event can a defendant be lawfully tried at the same time for two distinct and separate felonies; and a judgment for the two offenses will be set aside. Crawford v. State, 31 Tex. Crim. Rep. 53; Pitts v. State, 40 Tex. Crim. Rep. 667; 19 Cyc 1410B; 9 Ency. Pl. and Pr., 600, 604; Kelley, Crim. Law and Pr., p. 123.
Herbert S. Hadley, Attorney-General, and Rush C. Lake, Assistant Attorney-General, for the State.
(1) The information is in the approved form, and meets the requirements of the statute. It correctly describes the instrument alleged to be the subject of forgery, and also the name of the person forged thereto. State v. Fenly, 18 Mo. 445; State v. Pierce, 136 Mo. 34. (2) The instructions properly declare the law as applicable to facts proven. (3) It was not error for the court to overrule the defendant's motion to require the State to elect "upon which count it would stand and go to the jury." The "forgery" and the "uttering of forged paper," are two separate and distinct offenses. Both may be, and in this case were, properly pleaded in one information, but under two separate counts; the first charging the forgery; and the second charging the uttering of forged paper. The jury might, under the information, have found the defendant guilty upon one count and not guilty under the other, according as they find the facts to warrant their conclusion under the law. However, the jury found for the State under both counts of the information. (4) Although the instrument, upon its face, as set out in the information, may have been of no binding effect, it may nevertheless be the subject of forgery. State v. Eades, 68 Mo. 150; People v. Munroe, 100 Cal. 664; People v. Baker, 100 Cal. 188.
At the December term, 1905, the circuit attorney of the city of St. Louis filed an information, duly verified, in two counts, charging the defendant in the first count with forgery, and in the second count with uttering said forged paper. The substantive part of both counts is as follows:
with intent thereby then and there feloniously to injure and defraud; against the peace and dignity of the State.
The evidence on the part of the State tended to prove that one Doctor Rice and John W. Benstein and the defendant were promoting a World's Fair concession in 1904, all owning stock and being interested therein. Benstein had loaned the defendant money several times until an indebtedness of several hundred dollars existed in his favor against defendant. Defendant made an application for a loan of $ 75 and Benstein agreed to loan it to him if he would give additional security, and the defendant said that one J. B. Baker would sign the note. It appears that Benstein then drew the note as set out in the information, and Carragin, the defendant, signed it and took the note to get the additional name on it, and a few hours later returned with the endorsement thereon of J. B. Baker. Thereupon Benstein let him have the $ 75 and took the note and afterwards deposited it with the International Bank for collection. When it was due it was protested for non-payment. Baker who was away from St. Louis at the time the note was protested, testified that he promptly wrote the notary and the bank that he had not signed the note, and when he saw Benstein notified him to the same effect. Benstein had never met Baker prior to the execution of the note, but knew of the Baker family and understood that they were people of standing and reputation and he testified that upon the strength of that indorsement he took the note and let the defendant have the money. Benstein notified Carragin that Baker denied his signature on the note and defendant agreed to take it up. In March, 1904, Doctor Rice took from Benstein, among others, this note. Dr. Rice is the prosecuting witness in this case. The defendant admitted the execution of the note by himself and his own indorsement of it and its delivery to Benstein, but denies that he signed Baker's name to it. He explained that after he received the note from Benstein, he took it to Lippe's restaurant in St. Louis expecting to find Baker, but missed him and turned it over to one Neilson, who was to wait for Baker and have Baker sign it, and when he returned, Neilson gave him the note with the signature endorsed on it, "J. B. Baker," and he then delivered it to Benstein. Neilson did not testify in the case. At the close of the State's case, the defendant moved the court to direct the jury to acquit him because the note offered in evidence by the State was not the note purporting to be set forth according to the tenor of the information and because a writing such as set forth in the information could not be the subject of forgery unless the name of the maker and payee, they being one and the same persons, be indorsed on the back of said writing, and unless indorsed, the paper was a nullity as it imposed no pecuniary liability upon any one, and on the ground that the variance between the writing set out in the information and that introduced in evidence was fatal. The court overruled this motion and defendant excepted.
The court charged the jury that in the first count of the information defendant was charged with the forgery of an indorsement of the note therein set out, and in the second count he was charged with passing, uttering and publishing as true the forged indorsement. The court then instructed the jury that if at any time within three years next, before the filing of the information, the defendant knowingly and wilfully did forge, counterfeit and falsely make an indorsement of the name of J. B. Baker on the instrument described in the said first count, and that said indorsement purported to be the act of said J. B. Baker, and purported to be the written promise...
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