The State v. Cordray

• Citation: 98 S.W. 1,200 Mo. 29
• Parties: THE STATE v. CORDRAY, Appellant
• Decision Date: 04 December 1906
• Court: United States State Supreme Court of Missouri

98 S.W. 1

200 Mo. 29

THE STATE v. CORDRAY, Appellant

Supreme Court of Missouri, Division Two

December 4, 1906

Appeal from Buchanan Criminal Court. -- Hon. B. J. Casteel, Judge.

Reversed.

Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.

The indictment is sufficient in form and substance, and follows the language of the statute. R. S. 1899, sec. 2009; State v. Gullette, 121 Mo. 447; Kelley's Crim. Law, sec 780.

GANTT J. Burgess, P. J., and Fox, J., concur.

OPINION

GANTT, J.

On June 23, 1905, the grand jury of Buchanan county returned an indictment against the defendant, charging him with forgery in the third degree, to-wit, the unlawfully making and forging a certain lease and chattel mortgage and assignment purporting to be an act of one J. Herety, to the Union Mercantile Company, with intent to defraud, etc.

The defendant was arrested and duly arraigned and entered his plea of not guilty, and was tried and convicted at the September term, 1905, of the criminal court of Buchanan county. In due time he filed his motion for a new trial, which was taken up, heard and overruled, and thereupon he filed a motion in arrest of judgment, which was also overruled, and the defendant sentenced to the penitentiary for a term of two years in accordance with the verdict of the jury. Leave was given the defendant to file a bill of exceptions during the next term of the criminal court of said county, but he did not avail himself of that privilege, and hence this appeal presents nothing for review by this court except the record proper. The defendant is not represented in this court by counsel, but in obedience to the statute we have examined the record proper.

There is perhaps no proposition in criminal law upon which there is more unanimity of opinion among text-writers and the courts of last resort than that pertaining to the essentials of what is necessary to constitute an indictable forgery, and that one of these essentials is that the alleged forged instrument shall possess some apparent legal efficacy. Thus, Mr. Bishop in his Criminal Law (7 Ed.), vol. 2, sec. 533, says: "To constitute an indictable forgery, it is not alone sufficient that there be a writing, and that the writing be false; it must also be such as, if true, would be of some legal efficacy, real or apparent, since otherwise it has no legal tendency to defraud."

Blackstone defines forgery to be "the fraudulent making or alteration of a writing to the prejudice of another man's right."

In 13 Am. and Eng. Ency. Law (2 Ed.), 1082, it is said "Forgery is the false making, or alteration with fraudulent intent, of any writing, by which the party committing the act may wrongfully obtain something of value to the prejudice of another's rights because of the apparent legal efficacy of the writing and its capacity to deceive." This court, in State v. Warren, 109 Mo. 430, 19 S.W. 191, ruled that the intent to defraud is an essential element of the crime, and must be averred and proved. Both at common law and in the highest courts of the several States of the Union, it has uniformly been held that in order to be the subject of forgery, the instrument upon its face must, if it were genuine, be of some apparent legal efficacy for injury to another, and if on its face it is utterly valueless and of no binding force or effect for any purpose of harm, liability or injury to anyone, it cannot be the subject of forgery. [Colson v. Com., 110 Ky. 233, 61 S.W. 46; King v. State, 43 Fla. l. c. 218, 219; 19 Cyc. Law and Proc., 1379, and cases cited in note 94.] In People v. Tomlinson, 35 Cal. 503, it was said by the court: "The purpose of the statute against forgeries is to protect society against fabrication, falsification, and the uttering, publishing, and passing of forged instruments, which, if genuine, would...