The State v. Chissell

• Decision Date: 13 November 1912
• Citation: 150 S.W. 1066,245 Mo. 549
• Parties: THE STATE v. WILLIAM CHISSELL, Appellant
• Court: Missouri Supreme Court

150 S.W. 1066

245 Mo. 549

THE STATE v. WILLIAM CHISSELL, Appellant

Supreme Court of Missouri, Second Division

November 13, 1912

Appeal from Randolph Circuit Court. -- Hon. Fred Lamb, Special Judge.

Affirmed.

A. C Gladney and E. O. Doyle for appellant.

(1) The instruction asked by the defendant at the close of the State's evidence and the one at the close of the whole case should have been given by the court, for the reason that there was a fatal variance between the allegations of the information and the proof made by the evidence. State v Samuels, 144 Mo. 68; State v. Allen, 171 Mo 562; State v. Young, 237 Mo. 170; Sherwood's Crim. Law, pp. 371-4. The instructions in the nature of a demurrer at the close of the evidence should have given for the reason that the forgery of the check was not sufficiently proved, and that the defendant knew that the check was a forgery. State v. Young, 237 Mo. 170. (2) The court erred in not instructing the jury upon the evidence given by the State's witnesses, concerning the admissions of the defendant, to which they testified. State v. Glahn, 97 Mo. 679; State v. Moxley, 102 Mo. 374. The information if sufficient at all, is so under Sec. 4656, R. S. 1909. State v. Hessletine, 130 Mo. 468; State v. Walker, 167 Mo. 366.

Elliott W. Major, Attorney-General, and Campbell Cummings, Assistant Attorney-General, for the State.

(1) The information is predicated on Sec. 4656, R. S. 1909, and fully charges every element of the offense of forgery in the second degree, as defined in that statute. It uses the terms, "sell," "exchange" and "deliver." It was held in State v. Watson, 65 Mo. 117, that the use of such words sufficiently describes the offense defined by said section. State v. Samuels, 144 Mo. 71. The information, if predicated on Sec. 4644, R. S., is valid and sufficient. State v. Hesseltine, 130 Mo. 468; State v. Taylor, 117 Mo. 181; State v. Walker, 167 Mo. 366. (2) There was no fatal variance between the allegations of the information and the proof. (a) There is no allegation in the information that the money paid for the check was the property of Hoffberger. (b) The question of variance was not raised at the trial, and cannot now be urged. State v. Ballard, 104 Mo. 636. (c) Hoffberger was in possession of the money in the saloon as special bailee or custodian. It is proper in offenses committed upon or in relation to property, where there is ownership in one person and possession in another, as special bailee or custodian, to charge the ownership either as in the real owner or in the person in possession of the property. State v. Moore, 101 Mo. 316; State v. O'Connell, 144 Mo. 396; State v. Gorham, 55 N.H. 152; State v. Sullivan, 104 Mass. 217; Comm. v. O'Hara, 10 Gray, 469; Comm. v. Moore, 14 Mass. 217; People v. Phillips, 72 N.Y. 334; State v. Mullen, 30 Iowa 205; People v. Quinn, 132 Ill. 333; State v. Kennedy, 31 Fla. 428; State v. Flower, 100 Ala. 96; 2 Bishop Crim. Law, Sec. 789; Wharton's Crim. Law (9 Ed.), Secs. 932a, 938. There was not a failure of proof, as the charge was laid that appellant intended to defraud a particular person named and the proof sustained the charge as laid. There was no evidence that appellant knew Hoffberger was not the owner and but a bartender. The question of ownership by bailee was not considered in State v. Samuels, 144 Mo. 68.

KENNISH, J. Brown, P. J., and Ferriss, J., concur.

OPINION

KENNISH, J.

At the June term, 1911, of the circuit court of Randolph county, appellant was convicted of the offense of uttering a forged check, knowing the same to be a forgery. The jury assessed his punishment at imprisonment in the penitentiary for a term of five years, and from the judgment entered pursuant to the verdict he appealed to this court.

The information was based on Sec. 4656, R. S. 1909, and charged that the defendant, with intent to defraud one George Hoffberger, sold, exchanged and delivered to said Hoffberger, as true, for the valuable consideration of five dollars, a falsely made and forged check purporting to have been drawn by John Dumont on the Bank of Moberly, for the sum of five dollars, payable to Dan Pattison or bearer, knowing that said check was falsely made and forged.

The evidence for the State, which was somewhat meagre, tended to show the following facts:

At the time the offense was alleged to have been committed George Hoffberger was employed as a bartender at the saloon of Tony Fiorita in the city of Moberly. On March 31, 1911, the defendant went to Fiorita's saloon, presented the check in question to Hoffberger, and asked him cash it. Hoffberger took five dollars from the money drawer, and paid it to the defendant in exchange for the check. Defendant then purchased half a pint of whiskey, paid for it out of the money received for the check, and left the saloon. It was shown by the testimony of Dumont, and by the testimony of other witnesses as to admissions made by the defendant after he was arrested, that the check was a forgery. The testimony concerning the admissions made by the defendant also tended to prove that at the time he passed the check he knew it was a forged instrument.

The defendant did not testify in his own behalf, and the only evidence introduced by him was the testimony of Fiorita to the effect that the money given in exchange for the check belonged to Fiorita and not to Hoffberger.

Such additional facts as are necessary to an understanding of the questions before us for review will be stated in the course of the opinion.

I. The information was not challenged in the trial court nor is it directly challenged here. However, it is loosely drawn and the language of the averments is such as to raise a doubt whether it was intended to be bottomed upon Secs. 4644 or 4656, R. S. 1909. Because of these facts we have carefully examined the question as to its sufficiency. We shall not set out the information for the reason that it follows closely the language of the indictment in the case of State v. Watson, 65 Mo. 115, and was doubtless modeled upon the form found in that case. The court held the indictment in the Watson case good under said section 4656. That case has been followed in a number of later decisions, and under their authority we hold the information sufficient. [State v. Mills, 146 Mo. 195, 47 S.W. 938; State v. Harroun, 199 Mo. 519, 98 S.W. 467; State v. Standifer, 209 Mo. 264, 108 S.W. 17.]

II. The court instructed the jury upon the subjects of reasonable doubt and presumption of innocence, and gave a general instruction directing the jury that upon a finding of the facts charged in the information they should find the defendant guilty. Appellant does not complain of the instructions given, but assigns as error the action of the court in refusing to instruct the jury as to the law upon admissions made by the defendant against himself and introduced in evidence by the State.

The refusal of the court to instruct the jury as complained of cannot avail the defendant, for two reasons: First, such an instruction is always given, when given at all, at the instance of the State, and the refusal of the court to give it in this case was clearly favorable to the defendant and therefore not prejudicial error. Second, although the record shows that the defendant requested such an instruction and excepted to the action of the court in failing to give it, the refusal to give such an instruction was not made a ground of the motion for a new trial. One ground of the motion is that "the court erred in not instructing the jury on all of the law in the case." Under the doctrine of the recent cases of State v. Conway, 241 Mo. 271, 145 S.W. 441, and State v. Dockery, 243 Mo. 592, 147 S.W. 976, the defendant is required to call the court's attention particularly, in the motion for a new trial, to the question upon which the court failed to instruct the jury, in order to entitle him to a new trial upon such ground. That was not done in this case. Certain exceptions to the general rule are recognized in the Conway case, but this case does not fall within them.

III. At the close of the evidence for the State, and again at the close of all of the evidence, the defendant asked an instruction directing a verdict of not guilty. The court refused the instruction and appellant assigns such action of the court as error. This complaint calls for a review of the incriminating facts relied upon by the State to sustain the verdict, in so far as the sufficiency of the evidence is challenged by appellant.

It is contended that the evidence fails to show that the check described in the information was a forgery. The check purported to be signed by the witness Dumont. That witness testified in behalf of the...