The State v. Rowlen
| Decision Date | 14 March 1893 |
| Citation | 21 S.W. 729,114 Mo. 626 |
| Parties | The State v. Rowlen, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Criminal Court. -- Hon. John W. Wofford, Judge.
Affirmed.
Harry L. Strohm for appellant.
(1) The court should have sustained appellant's motion to quash the indictment. In all criminal prosecutions the accused shall have the right to demand the nature and cause of the accusation. (Bill of Rights, sec. 22.) In indictments for felonies greater strictness is required than for misdemeanors. State v. Pemberton, 30 Mo. 376. Yet in misdemeanors, where the cause of the prosecution is a written instrument, such as libel or obscene literature and the like a copy of the instrument must be set out. State v Hayward, 83 Mo. 299. Modern legislation in removing technicalities from the indictment have not dispensed with the substance, and an indictment must contain all the substantial averments of a good indictment at common law. State v. Ross, 25 Mo. 426; State v. Holden, 48 Mo. 93; State v. Evers, 49 Mo. 542; State v Keel, 54 Mo. 182; State v. Howerton, 59 Mo. 91. "So important are the necessary allegations in an indictment to give full notice of the offense, that the legislature cannot dispense with it." McLaughlin v. State, 45 Ind. 338; Lindringham v. State, 49 Ind. 186. The act of the legislature under which this indictment is drawn (Revised Statutes, 1889, sec. 4108) is in violation of the Bill of Rights, section 22, and is void, so far only as it attempts to dispense with setting out more clearly an alleged forged instrument. State v. Clay, 100 Mo. 571. The indictment is bad for repugnancy, charging in one place the forgery of a deed, and in another a "quitclaim deed of release," both referring to the same instrument. The mortgage must be set out in the indictment to inform the court of the legal effect of a release of the same. State v. Henderson, 15 Mo. 486. (2) The court should have sustained the appellant's demurrer to the evidence. The said real estate being in the state of Kansas, delivery of a deed is necessary to complete it. "A deed undelivered is no deed." Mitchell v. Skinner, 17 Kan. 565. "A deed takes effect from its delivery only." Railroad v. Owen, 8 Kan. 409; Railroad v. Orr, 8 Kan. 419; Clark v. Akers, 16 Kan. 166; Harrison v. Andrews, 18 Kan. 536. No evidence was introduced to prove the delivery of said alleged forged deed in the state of Missouri, or that it was ever in the possession of the appellant. (3) The court should have permitted appellant to amend his motion for a new trial, and should have granted the motion. (4) The motion in arrest of judgment should have been sustained for the reasons therein set out.
John M. Wood, Attorney General, for the State.
(1) "The indictment is sufficient; it charges the offense in the language of the statutes, sets forth the instrument according to its 'purport,' and it was not necessary to its validity to charge that there was an intent on the part of the defendant to defraud any particular person." State v. Rucker, 93 Mo. 89; Revised Statutes, sec. 3626; State v. Fisher, 65 Mo. 437; Wharton's Precedents, sec 264, et seq.; State v. Pullens, 81 Mo. 387; State v. Eades, 68 Mo. 150; State v. Phillips, 78 Mo. 49; State v. Yerger, 86 Mo. 33. (2) The objection of the defendant to the introduction of any evidence "because said indictment did not state a public offense," was properly overruled; the sufficiency of the indictment cannot be decided in this way. State v. Risley, 72 Mo. 609. (3) Possession of the mortgage instrument in the county in which the indictment was found is considered evidence that it was committed in that county. State v. Rucker, 93 Mo. 88. The testimony in this case shows very clearly that a forgery was committed in Jackson county. It is immaterial where the land was situated. The question whether he forged the deed on its face will have the effect to defraud those who may act on it as genuine, or the person whose name is forged. State v. Eades, 68 Mo. 152.
Defendant was convicted at the September term, 1891, of the criminal court of Jackson county of forgery in the first degree, and his punishment fixed at ten years imprisonment in the penitentiary.
The indictment is as follows:
"State of Missouri, "County of Jackson.] ss.
In the Criminal Court of Jackson County, Missouri, at Kansas City, Missouri, January Term, A. D. 1891.
"The grand jurors for the state of Missouri, in and for the body of the county of Jackson, upon their oaths, present that Frank S. Rowlen, late of the county aforesaid, on the twenty-second day of April, 1889, at the county of Jackson, state aforesaid, unlawfully and feloniously did falsely make, forge and counterfeit a certain deed purporting to be the act and deed of one Stephen Rosner, by which the right and interest of the said Stephen Rosner, in and to certain real estate, to-wit, the southeast quarter (1-4) of section number five (5), and the north half (1-2) of the northwest quarter (1-4) of section nine (9), township number twenty (20), in the county of Pawnee and state of Kansas, purports to be transferred and conveyed to him, the said Frank S. Rowlen, Amanda C. Rowlen, his wife, and releasing the above described land from a certain mortgage then and there owned and held by the said Stephen Rosner; which said false, forged and counterfeit deed is of the purport, effect and value following, to-wit, the same being in the likeness and similitude of a good and sufficient quitclaim deed of release, dated on the twenty-second day of April, A. D. 1889, and executed, signed, sealed, acknowledged and delivered in due form and manner of law as a quitclaim deed of release by Stephen Rosner of the county of Jackson and state of Missouri, whereby the said Stephen Rosner, on the twenty-second day of April, A. D. 1889, in consideration of the sum of $ 1,500 to him paid by Frank S. Rowlen and Amanda C. Rowlen of the county of Anderson, in the state of Kansas, remised, released and forever quitclaimed unto the said Frank S. Rowlen and Amanda C. Rowlen, the following described real estate, that is to say, the following described lots, tracts and parcels of land lying, being and situate in the county of Pawnee and state of Kansas, to-wit, the southeast quarter (1-4) of section number five (5) and the north half (1-2) of the northwest quarter (1-4) of section...
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