The State v. Leonard
| Citation | 71 S.W. 1017,171 Mo. 622 |
| Parties | THE STATE v. LEONARD, Appellant |
| Decision Date | 03 February 1903 |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. O'Neill Ryan Judge.
Reversed.
Thos B. Harvey for appellant.
(1) Persons accused of crime still have the right to be informed of the nature of the charge against them in clear, consistent and unambiguous averments, notwithstanding any statutes to the contrary. State v. Ferry, 109 Mo. 601; State v. Evans, 128 Mo. 406; State v. Furgerson, 152 Mo. 92. Some allegations when not material or necessary to the charge may be rejected as surplusage; and some authorities hold (though the great bulk are to the contrary) that where an instrument is set out in haec verba, an allegation of the purporting clause, inconsistent with the instrument itself, may be rejected as surplusage. But even this liberal rule can not reach and cure the flagrant repugnancy of this indictment; for the purporting allegations are found only immediately preceding and immediately following the tenor of the ticket. The repugnancies complained of are imbedded in the charging and explanatory allegations which are made directly and unequivocally. Purport improperly describing the import of the forged instrument, is not cured by setting out instrument in haec verba. The repugnancy is fatal. State v. Bean, 19 Vt. 530; Shinn v. State, 57 Ind. 144; Yount v State, 64 Ind. 443; Sutton v. Com. (Ky.), 30 S.W. 665; State v. Horan, 64 N.H. 548; English v. State, 30 Tex.App. 470; Campbell v. State, 35 Tex. Cr. R. 182; Fite v. State, 36 Tex. Cr. R. 4. (2) An instrument void on its face, and not by reason of extrinsic facts, is not a forgery and not capable of being uttered. 13 Ency. of Law, p. 1093; 23 Am. Century Dig., col. 1499; 2 Bishop's New Cr. Law, sec. 538; State v. Warren, 109 Mo. 433.
Edward C. Crow, Attorney-General, and C. D. Corum for the State.
(1) It is not essential, in order to constitute the crime of forgery, that the writing uttered be perfect in form. Indeed, the writing may purport to be made by some person or corporation that was incapable of making such an instrument. The only question is, will the paper writing have the effect to defraud those who may act on it as genuine? It makes no difference, then, that a portion of the stamp, which is usually attached to tickets, was not discernible. The law goes no further than the falsity of the instrument and the fraudulent use of it as genuine. State v. Eads, 68 Mo. 150. The fact that the ticket was not plainly stamped can not be plead by defendant as a defense to this charge, any more than he could plead, if charged with counterfeiting the whole instrument, that he was not guilty of forgery because he had failed to make a complete likeness. It is not necessary that an instrument should be perfect in order to constitute forgery; it is sufficient if it bears such a resemblance to the document it is intended to represent as is calculated to deceive, provided its defects are not so open and palpable that one can not be deceived without being grossly negligent. State v. Tompkins, 71 Mo. 616; State v. Furgeson, 35 La. Ann. 1042; Garmier v. State, 104 Ind. 144; Com. v. Linton, 2 Va. Cas. 477; State v. Dourden, 13 N.C. 443; People v. Munroe, 124 La. Ann. 33; Costley v. State, 14 Tex.App. 156; People v. Bibby, 91 Cal. 470; Com. v. Costello, 120 Mass. 367; 2 McClain's Crim. Law, sec. 758. (2) As to the question of repugnancy: The ticket is set out in the indictment in haec verba. It shows a contract between two railroads to carry the purchaser of the ticket to Waverly, Ohio. It is gathered from the purporting clause of the indictment that the Baltimore and Ohio Southwestern Railway extended to Waverly. But the ticket and facts introduced in evidence show that the line of said railroad does not extend to that point and that passengers must change cars and take a different road at Chillicothe, Ohio, in order to reach Waverly. Under the rules of common law such repugnancy would probably be fatal to a valid indictment. But under the statutes and decisions of the State, where the instrument forged is set out according to its tenor, the purporting clause may be rejected as surplusage. R. S. 1899, sec. 2535; State v. Pullen, 81 Mo. 392; State v. Chamberlain, 89 Mo. 129; State v. Edwards, 60 Mo. 49; State v. Kroeger, 47 Mo. 552; State v. Fenley, 18 Mo. 454; State v. Yerger, 86 Mo. 33.
The appellant in this case was indicted in pursuance of section 2012, Revised Statutes 1899, charged with having in his possession a forged railroad ticket. His trial upon this indictment resulted in a conviction and punishment assessed at imprisonment in the county jail for six months. Numerous errors are complained of and earnestly urged as causes for reversal of that judgment.
It is not necessary to a full understanding of the questions presented to copy the indictment. The ticket charged to have been forged is such a puzzle that a copy of it, in this opinion, would not add any light to the discussion of the matters submitted to us for determination.
It is first contended by appellant that the allegations in the indictment are so repugnant and inconsistent to each other as to have warranted the court in sustaining the demurrer to the evidence or the motion in arrest of judgment. In order to apply the proper tests as to the sufficiency of this indictment, it is well to first inquire as to the act by which forgery is committed. It is elementary that the act of forgery consists of causing a writing to appear of some legal efficacy, which in truth it does not possess, as by giving it the similitude of the genuine instrument. [2 Bishop's New Criminal Law (8 Ed.), sec. 572.] There must, in the forged instrument, be such a resemblance to the genuine, as is reasonably calculated to deceive or mislead. The resemblance need not be exact, but the instrument must be, "prima facie," fitted to pass as true. Bishop further says in discussing this question, "that the closeness of similitude where similitude is required, will vary somewhat with the cases; the question in each case being whether or not, in the particular instance, the forgery has the needful adaptation to accomplish the purposed fraud." [2 Bishop's New Cr. Law (8 Ed.), sec. 592.]
Measured by these principles, we see that there must be in the forged instrument a sufficient closeness of similitude to the genuine instrument as is necessary or reasonably calculated to accomplish the fraud.
The ticket charged to have been forged or altered, which it is further charged was in the possession of defendant, is set out according to its tenor. This ticket provides that it shall be good for passage "when officially dated." It also provides that "any alteration whatever of this ticket renders it void."
We take it that it is clear that the genuine ticket must be officially dated and must not have any material alterations. It must also follow that the forged ticket must have the appearance of a genuine official date, for without the official date it would not be reasonably calculated to deceive or mislead any one. As was said by witness Lihon without such official date the ticket would be void. His inability to state whether the conductor...
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