The State v. Walker
| Decision Date | 11 March 1902 |
| Parties | THE STATE v. WILLIAM WALKER, Appellant |
| Court | Missouri Supreme Court |
Appeal from Howell Circuit Court. -- Hon. W. N. Evans, Judge.
Reversed and remanded.
John F Black, C. L. Coyner and S. A. Handy for appellant.
(1) The information is bad because it states two separate and distinct crimes. State v. Williams, 152 Mo. 115; State v. Jackson, 89 Mo. 561. (2) In an information for forgery, this court has held that very slight inaccuracies will be fatal. Thus, changing the instrument said to have been forged, is a gross variance and should not be allowed. State v. Fay, 65 Mo. 490; State v English, 67 Mo. 136; State v. Chamberlain, 75 Mo. 383; State v. Smith, 31 Mo. 120; State v. Gullette, 121 Mo. 447.
Edward C. Crow, Attorney-General, and Jerry M. Jeffries for the State.
(1) The information in this case follows the words of the statute and in every particular informs the defendant of what he is charged. That is all that is necessary. State v. Van Wye, 136 Mo. 227; State v. Davis, 106 Mo. 230; State v. Adams, 108 Mo. 208. The information described the instrument forged, and is sufficient to notify the defendant of the charge. State v. Fisher, 65 Mo. 437; State v. Glennon, 67 Mo. 380. (2) The record shows that there is absolutely no variance between the proof and the information, but even though there had been a small variance, the trial court is the judge of the question as to whether or not such a variance is prejudicial to the defendant. State v. Wammack, 70 Mo. 410; State v. Lamb, 141 Mo. 298.
Prosecution of defendant under section 2002, Revised Statutes 1899, the information, in its charging part, being the following:
Ninety days after date we promise to pay to the order of seventy-five dollars, payable at the Howell county Bank, in West Plains, Mo., with interest from date at the rate of eight per cent per annum, payable annually, and if the interest be not paid annually, or when due, to be added to and become a part of the principal, and bear the same rate of interest.
I. It was at first thought that the above paper writing constituted two counts and this was asserted on part of defendant, but on closer examination it has been found that what was thought to be the first count, was simply prefatory matter or matter of inducement, so to speak, to the count on which the prosecution counts.
And this is rendered more apparent when we consider the requisites of an information based on section 2003. Such information would have to allege that the falsely made, forged and counterfeited promissory note was in the possession of defendant, he knowing the same to be falsely made, etc, with intent to defraud.
But these allegations are wholly lacking, and hence we conclude that the prefatory paper was not intended for anything more than what its face would appear to indicate.
2. The information, aforesaid, as is certified by the clerk of the Howell Circuit Court, is not, as he states, "the original information filed in this cause, but a copy as permitted to be restored by the court." Under such a certificate we are bound to presume that the trial court would not have permitted the restoration to be made unless correctly made, since that was the duty of the trial court, to see to this matter. This presumption places this restored information in the same situation, and on the same plane as if the original information had not become a "dissolving view."
The information now before us is evidently attempted to be bottomed on section 2002, as before stated.
That section reads as follows:
"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 counterfeited 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."
But the information does not follow that section very closely. It will be noted of that section that, near its close, it says "with intent to have the same altered or passed." While the information uses the words, "with intent to have the same uttered and passed." This word "uttered" is not to be found...
To continue reading
Request your trial