The State v. Harroun

• Decision Date: 02 December 1906
• Citation: 98 S.W. 467,199 Mo. 519
• Parties: THE STATE v. HARROUN, Appellant
• Court: Missouri Supreme Court

98 S.W. 467

199 Mo. 519

THE STATE v. HARROUN, Appellant

Supreme Court of Missouri, Division Two

December 2, 1906

Appeal from Buchanan Criminal Court. -- Hon. A. D. Burnes, Special Judge.

Reversed and remanded.

Duncan & Utz, W. B. Norris and W. M. Williams for appellant.

The indictment is defective and insufficient to support the judgment, and the motion in arrest should have been sustained. State v. Fay, 65 Mo. 490; State v Chinn, 142 Mo. 507; Polk v. State, 51 S.W. 909; Bynum v. State, 17 Oh. St. 143; Carberry v State, 11 Oh. St. 414; Joiner v. State, 80 S.W 531; Mayer v. State, 85 S.W. 802; Thulemeyer v. State, 43 S.W. 83. (a) There is nothing upon the face of the bill of lading to show that said Adams, whose name is signed thereto, was acting by said W. A. Mueller, as alleged in the indictment. The letter "M" in and of itself is not sufficient for that purpose. It might mean many different things or stand for a number of names other than that of W. A. Mueller. State v. Fay, supra; State v. Chinn, 142 Mo. 513; Bynum v. State, 17 Oh. St. 143; Carberry v. State, 11 Oh. St. 414; Polk v. State, 51 S.W. 909. (b) The statute in defining forgery in the third degree requires that the act must be done with "intent to injure or defraud." R. S. 1899, sec. 2009. The indictment does not follow the language of the statute. It charges that the act was done "with intent then and there to cheat and defraud," thereby substituting the word "cheat" for the word "injure." State v. Miller, 132 Mo. 300.

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

Defendant is charged with the crime of forgery in the third degree, to-wit, the forgery of a certain bill of lading purporting to be the act of the Chicago, Burlington & Quincy Railway Company. Section 2009 is broad enough to include the forging of a bill of lading, or warehouse receipt, or any other obligation whereby the rights or property of another shall be, or purported to be, transferred, created, etc. State v. Gullette, 121 Mo. 447.

OPINION

BURGESS, P. J.

The defendant was convicted in the criminal court of Buchanan county of forgery in the third degree and his punishment fixed at five years imprisonment in the penitentiary under an indictment preferred against him by the grand jury of said county charging him with falsely making a bill of lading purporting to be the act of the Chicago, Burlington & Quincy Railroad Company, a corporation, for the carriage and transportation of sixty thousand pounds of wheat of the value of five hundred dollars, from St. Joseph, Missouri, to Chicago, Illinois, with the intent to cheat and defraud. After unavailing motions for a new trial and in arrest, defendant appeals.

Hon. B. J. Casteel, the regular judge of said court, being disqualified, the Hon. A. D. Burnes, judge of the fifth judicial circuit, was called in by him to try the cause.

The facts are about as follows: The defendant at the time of and for some time prior to the commission of the alleged offense was engaged in the grain and elevator business at St. Joseph, Mo. During all this time W. K. Adams was the local freight agent of said company at said city and one W. E. Mueller, was the chief clerk in Adams' office; it was customary when freight was received by said railroad company for Mr. Adams to execute a bill of lading therefor, signing the name "W. K. Adams, freight agent, per M.," thereto; sometimes the bill of lading was signed "W. K. Adams, freight agent, per Mueller," and sometimes W. K. Adams, freight agent, M." The State's evidence tended to show that a number of bills of lading were forged by the defendant, including the one described in the indictment, and that the defendant admitted to various officers of said railroad company that he had forged said bills of lading, some of which were in possession of other persons not known to the defendant. These statements were made by the defendant at the office of the general freight agent of the Burlington road, at St. Joseph, at the defendant's residence in St. Joseph, and at another place in St. Joseph. He asked these gentlemen to keep the matter quiet and to suppress a certain telegram that had been received in regard to a certain outstanding forgery. Defendant gave the railroad officers a list, which list showed that bills had been forged for freight worth $ 124,000. He then took a pen and, in the presence of Judge O. M. Spencer and others, showed how he could imitate the signature of Mr. Adams as signed by Mueller. It afterwards developed that said bills of lading, instead of amounting to freight worth $ 124,000, in reality amounted to $ 156,000. Adams and Mueller both testified that the signature to the bill of lading described in the indictment was not signed by Mr. Mueller.

The defendant's evidence tended to show that while he had been guilty of forging other bills of lading and warehouse receipts, he did not forge the one described in the indictment; and that the Burlington Railroad Company never lost anything by reason of said alleged forgery. He also introduced evidence tending to show that he enjoyed a good reputation for honesty and integrity prior to and since the commission of the alleged crime. The defendant's evidence further tended to show that Mueller, a witness for the State, had made contradictory statements and had made conflicting statements in his efforts to distinguish between the alleged forged bill of lading and others which were genuine.

The indictment, leaving off the formal parts, is as follows:

"The grand jurors of the State of Missouri, within and for the body of the county of Buchanan aforesaid, being duly empaneled and sworn, upon their oaths do present that W. H. Harroun, on the 2nd day of September, 1904, at the county of Buchanan and State aforesaid, feloniously did falsely make and forge a certain instrument of writing and bill of lading purporting to be the act of Chicago, Burlington & Quincy Railway Company, a corporation incorporated under and by virtue of the laws of the State of Iowa, by one W. K. Adams, its agent and servant, having authority so to do, the said W. K. Adams acting by one W. A. Mueller, the said W. A. Mueller having authority thereof, he, the said W. A. Mueller, being then and there the servant and agent of said corporation and said W. K. Adams. And the said purported act of said Chicago, Burlington & Quincy Railway Company, by its agents and servants, said W. K. Adams and said W. A. Mueller, to-wit, the said false and forged instrument of writing and bill of lading, purported to have created and transferred a pecuniary demand and obligation for the payment of sixty thousand pounds of wheat of the value of five hundred dollars, and the right of property in and to said wheat purported to be transferred and conveyed by the said Chicago, Burlington & Quincy Railway Company, which said false and forged instrument of writing and bill of lading is of the tenor following, to-wit:

[SEE ILLUSTRATION IN ORIGINAL]

With intent then and there and thereby feloniously to cheat and defraud; against the peace and dignity of the State."

The indictment is assailed upon the ground that it fails to set out in the language of the statute the nature of the offense sought to be charged against the defendant, in that it alleges that "the said false and forged instrument of writing and bill of lading purported to have created and transferred a pecuniary demand and obligation for the payment of sixty thousand pounds of wheat of the value of five hundred dollars and the right of property in said wheat purporting to be transferred and conveyed by the said Chicago, Burlington & Quincy Railway Company, which said false and forged instrument of writing and bill of lading is of the tenor following, to-wit, with intent then and there and thereby feloniously to 'cheat' and defraud." In a word, it is claimed that the indictment is bad because it uses the words, "with intent to cheat and defraud," instead of "with intent to injure and defraud." That is, that the word "cheat" is substituted for the word "injure." The language of the statute (sec. 2009, R. S. 1899) is, "Every person who, with intent to injure or defraud" etc., and it would have been good pleading to have alleged, "injure and defraud," conjunctively.

With respect to indictments for statutory offenses, the general rule is that the indictment must follow the language of the statute, but it is not absolutely necessary to a good indictment that it use the exact words of the statute if words of similar import are employed. Thus, in State v. Batson, 31 Mo. 343, in an indictment for grand larceny in alleging ownership of the property stolen it was held not necessary to use the exact words of the statute, if words of a similar import are employed, as goods and chattels of one B. instead of "belonging to" B.

In State v. Watson, 65 Mo. 115, it was ruled that an indictment need not describe the offense in the language of the statute, but may use words which, in their common acceptation, mean the same thing when spoken of the acts charged against the accused. The court said:

"It will be observed that it contains every material allegation required by that section; but instead of the words 'pass,' 'utter' and 'publish' substitutes the words 'sell,' 'exchange' and 'deliver.' Do these words, in connection with the acts charged, sufficiently describe the offense, or is the pleader confined to the words in the section? It is generally, not, however,...