The State v. Patterson
| Decision Date | 06 June 1893 |
| Parties | The State v. Patterson, Appellant |
| Court | Missouri Supreme Court |
Appeal from Saline Criminal Court. -- Hon. J. E. Ryland, Judge.
Affirmed.
Samuel Boyd for appellant.
(1) The indictment in this case contains three counts, charging distinct offences, and is a valid and sufficient indictment. The verdict finds defendant "guilty" as charged in the third count, and amounts to an acquittal of the charge contained in the first count. Wharton's Criminal Practice and Pleading, sec. 895; State v. Kattleman, 35 Mo 107; State v. Whitton, 68 Mo. 91; State v Cofer, 68 Mo. 120; State v. Grimes, 29 Mo.App 470; State v. Hays, 78 Mo. 600. (2) The dismissal by the state, as to the second count, after the jury had been sworn, and after the state's evidence had been heard, amounted to an acquittal of the defendant upon the second count of the indictment. Wharton's Criminal Practice and Pleading. secs. 383, 347; People v. Gardner, 62 Mich. 307; S. C. 29 N.W. 19; People v. Curtis, 76 Cal. 57; S. C. 17 Pac. R. 941. (3) The evidence in this case, while admissable, is insufficient to sustain a conviction upon the third count of the indictment. (The count upon which the verdict is based.) The offence charged in said count is one described in section 3634 of the Revised Statutes of 1889. The intent necessary to constitute the offence is the "intent to have the same altered or passed." To sustain the charge of the third count, it is necessary to charge and prove that intent. 3 American and English Encyclopedia of Law, p. 674, and cases cited; Bishop's Criminal Law [6 Ed.], secs. 288, 735; State v. McCullum, 44 Mo. 345; Reagan v. State, 28 Tex. 227. (4) Instruction number two, given for the state, should not have been given, for the reason that there was no evidence to support it -- no evidence of the particular intent necessary to constitute the crime charged. Vanvalcanberg v. State, 11 Ohio 404; Hutchins v. State, 13 Ohio 198; State v. Watson, 65 Mo. 120. (5) The trial court did not have jurisdiction to try defendant for the crime of which he was convicted. The affidavit on which he was extradited charged but one offense, viz: that of making a forged check, and does not charge that defendant passed the forged check to another person. (6) The affidavit is not sufficient under the laws of this state to charge the crime of selling a forged check. Revised Statutes, section 4021; Coyle v. Railroad, 27 Mo.App. 584; Scott v. Robards, 67 Mo. 289; Pier v. Heinrichoffen, 52 Mo. 333. (7) The weight of authority in this country is to the effect that a person extradited from one state to another can only be held to answer the charge for which he has been requested to be delivered up, and for which he has been delivered. State v. Hall, 40 Kan. 308; 7 American and English Encyclopedia of Law, pages 648, 649, 650 and notes and cases cited particularly, In re Cannon, 47 Mich. 481; United States v. Rausher, 119 U.S. 407; Com. v. Hawes, 13 Bush 697; Spear on Extradition, pages 525 to 557; In re Fitton, 45 F. 471; Ex parte Spears, 88 Cal. 640; Act of Congress concerning fugitives from justice, Revised Statutes, volume 2, page 2072.
John M. Wood, Attorney General, for the state.
(1) The third count of the indictment upon which defendant was convicted sets out the instrument according to its tenor, and charges the offense in the language of the statute, and is sufficient. Revised Statutes, section 3634. (2) There was nothing in the special plea of defendant. The several counts all related to but one transaction -- the one, as the evidence which was introduced on the special plea showed, for which he was extradited. (3) It was competent to show defendant's acts and declarations to the people in Marshall as forming a part of his scheme to deceive and defraud. As admitted by defendant himself, they were resorted to for the purpose of taking advantage of the people, owing to their excitement on the railroad question, by placing himself in their confidence so as to secure payment of the forged check. (4) It was competent to prove the incorporation of the bank by general reputation, as was done. Revised Statutes, section 4215; State v. Jackson, 90 Mo. 156; State v. Tucker, 84 Mo. 23; State v. Fitzsimmons, 30 Mo. 236. (5) Taking the closing argument in its fullness, we cannot see that anything was said which justifies a reversal of the case. As can be clearly seen, the prosecuting attorney took the position that there was no reasonable doubt in the case, and was insisting upon and urging the jury to not allow him to escape on that as a pretext. (6) The defendant was proven guilty by evidence most satisfactory, and the judgment should be affirmed.
T. H. Harvey, Prosecuting Attorney, and A. F. Rector, also for the state.
(1) The evidence in this case was both admissible and sufficient to sustain a conviction under the third count of the indictment. The act of selling for value the check known to the defendant to be a forged and worthless check is sufficient proof of the intent to have the same passed. Wharton's Criminal Law [9 Ed.], section 717; Hopkins v. State, 3 Metcalf (Mass.) 460. (2) Instruction No. 2 was properly given for the state. There was abundant evidence to support it. (3) The court had jurisdiction to try the defendant under the third count of the indictment. The affidavit of J. P. Huston fully charged the offense of which defendant was convicted; charged not only the forgery, but the sale and exchange of the forged check. The preponderance and weight of authority are to the effect that defendant can be tried not only for the offense for which he has been delivered up, but for another and a different offense. Haw v. State, 4 Texas App. 645; Browning v. Abrams, 51 How. Pr. 172; State v. Stewart, 60 Wis. 587; 50 Am. Rep. 388; Hackney v. Welsh, 107 Ind. 253; Waterman v. State, 116 Ind. 51; Harland v. Territory, 3 Wash. 131; In re Miles, 52 Vt. 609; Williams v. Bacon, 10 Wend. 636; Dow's Case, 18 Pa. St. 37; In re Noyes, 17 Alb. L. J. 407; Spear on Extradition, note at page 555; Act of Congress concerning fugitives from justice, Revised Statutes of Missouri, page 2072. 2 Moore on Extradition, secs. 642-648. The case of the United States v. Rauscher, 119 U.S. 407; and Commonwealth v. Hawes, 13 Bush, 697, cited by counsel for defense, are not in point, for the reason that they both deal directly and solely with international and not interstate extradition.
OPINIONIn Banc
There were three counts in the indictment on which the defendant was put upon his trial. All of the counts were properly drawn. The third count is the following: "And the grand jurors aforesaid, upon their oaths aforesaid, do further present and charge that said Don Cameron Patterson, alias A. R. Ruger, on the twentieth day of December, 1890, at the said county of Saline, unlawfully and feloniously did sell, exchange and deliver to the Wood & Huston Bank, a bank then and there duly incorporated under the laws of the state of Missouri, for the consideration of $ 125, a certain falsely made, forged and counterfeited check, purporting to be made and drawn by one A. B. McIntire, in favor of A. R. Ruger, on the Joplin National Bank, a bank then and there duly incorporated under the laws of the United States, which of said falsely made, forged and counterfeited check is the tenor following, that is to say:
This count is based on section 3634, Revised Statutes, 1889, which declares that: "Every person who shall sell, exchange or deliver, or offer to sell, exchange or deliver, or receive upon a sale, exchange or delivery for any consideration, any falsely made, altered, forged or counterfeit note, check, bill, draft or other instrument, the falsely making, altering, forging, or counterfeiting of which is by the last section declared to be an offense, knowing the same to be falsely made, altered, forged or counterfeited, with intent to have the same altered or passed, shall be adjudged guilty of forgery in the second degree."
I. As the defendant was tried and convicted on this count, it is unnecessary to notice the other counts further than to say that the jury, having found the defendant guilty as charged in the third count, that this amounted to an acquittal of the charge in the first count. State v. Whitton, 68 Mo. 91; State v. Hays, 78 Mo. 600. And that as the defendant was put on his trial on the second count, and thus placed in jeopardy, the dismissal by the prosecuting officer as to such count operated an acquittal of that count. Wharton's Criminal Practice and Pleading, sec. 383 and cases cited.
II. The defendant brings in question the sufficiency of the evidence to support his conviction under the third count. That evidence in substance shows: That defendant came to Marshall Saline county, Missouri, December 19, 1890, representing himself to be A. R. Ruger, the chief engineer of the Chicago, Milwaukee & St. Paul Railroad, and that he desired to establish his headquarters there; drove around town that day with some of the citizens over the route of the proposed road, and spoke of hiring teams, etc.; that next morning he hired a team to take him to Miami, but before leaving saw J. P. Huston, cashier of the Wood & Huston bank, to whom it seems he had been introduced, and telling him that he wished to leave town, but wanted to have...
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