State v. Hesseltine

Shebwood, J. The defendant was indicted for the forgery of a certain check, and also with having sold, [472] exchanged, and delivered said check,knowing the same to have been forged. The cause was submitted to the jury on the first and third counts of the indictment, which are, in their material portions, the following: “That William F. Hesseltine, on the tenth day of December, A. D. 1892, at the said county of Harrison, did then and there unlawfully forge, counterfeit, and falsely make a certain check, purporting to be made by one F. J. Hesseltine, under the name of T. J. Hesseltine, on the Bethany Savings Bank, a corporation duly incorporated under the laws of the state of Missouri, payable to W. O. Ross for one hundred and eighty and twenty hundredths dollars, and dated December 10, 1892, which said false, forged, counterfeit check is of the tenor following: ‘No.- Bethany, Mo., Dec. 10, 1892. ‘Bethany Savings Bank, pay to W. C. Ross, or bearer, one hundred and eighty and twenty hundredths dollars, in current funds. ‘$180.20. T. J. Hesseltine.’ With the intent then and there to injure and defraud, against the peace and dignity of the state. “And the jurors aforesaid, on their oaths aforesaid, further present and charge that the said William F. Hesseltine, afterward, on the twelfth day of December, A. D. 1892, at the said county of Harrison, did then and there unlawfully and feloniously sell, exchange, and deliver to the Bethany Savings Bank, a corporation duly incorporated under the laws of the state of Missouri, a falsely made, forged, and counterfeit check, purporting to be made by one F. J. Hesseltine, under the name of T. J. Hesseltine, on the Bethany Savings Bank, a corporation duly incorporated under the laws of -the state of Missouri, payable to W. C. [473] Ross, for one. hundred and eighty and twenty hundredths dollars, and dated December 10, 1892, which said false, forged, and counterfeit check is of the tenor following: ‘No.- Bethany, Mo., Dec. 10,1892. ‘Bethany Savings Bank, pay to W. O. Ross, or bearer, one hundred and eighty and twenty hundredths dollars in current funds. ‘$180.20. T. J. Hesseltine.’ He, the said William E. Hesseltine, then and there well knowing the same to be false, forged, and counterfeit, with the intent to injure and defraud, against the peace and dignity of the state. “S. C. Price, Prosecuting Attorney.” The jury found the defendant not guilty under the' first count, to wit, of forging the check, but guilty under the third count of having sold the check, knowing the same to have been forged, and assessed his punishment at five years’ imprisonment in the penitentiary. The first point for discussion is the sufficiency of the indictment, defendant insisting that the third count upon which he was found guilty, is insufficient in law. It is evident that count must have been framed upon one of the following sections of Revised Statutes, 1889, to wit: “Sec. 3634. 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 [474] altered or passed, shall be adjudged guilty of forgery in the second degree.” “Sec. 3646. Every person, who, with intent to defraud, shall pass, utter, or publish, or offer or attempt to pass, utter, or publish as true, any forged or counterfeited, or falsely altered instrument or writing, or any counterfeit, or any imitation of gold or silver coin, the altering, forging, or counterfeiting of which is hereinbefore declared to be an offense, knowing such instrument, writing, or coin to be altered, forged, or counterfeited, shall, upon conviction, be adjudged guilty of forgery in the same degree as hereinbefore declared for the forging, altering, or counterfeiting the instrument, writing, or coin so passed, uttered, or published, or offered or attempted to be passed, uttered, or published.” If framed under section 3634, the count is bad because it does not allege that the sale was for a consideration, and then specify such consideration as it should do. State v. Patterson, 116 Mo. 505; State v. Taylor, 117 Mo. 181; Kelly Cr. L. [2 Ed.], sec. 774. And the count, if based on the section aforesaid, is also bad, because of omitting the words in that section contained, “with intent to have the same altered or passed” (the word “altered” is evidently a clerical mistake for “uttered”). Words of a statute which are descriptive of an offense, a part of the statutory definition, can not be omitted from any indictment based thereon without fatally vitiating such indictment. People v. Wilber, 4 Park. Cr. C. 19; 1 Bishop, Cr. Proc., secs. 521, 611, 618; 1 Stark. Cr. PI. [2 Ed.] 177; Whart. Cr. Pl. and Pr. [9 Ed.], secs. 163a, 220. This defect in the indictment as to the omission of the word “consideration” was attempted to be remedied and supplied by introducing that word into the [475] second instruction given at the instance of the state, but such defects can not be thus rectified. An indictment must stand on its own bottom, and can not be supported or propped by instructions, which are not allowed to raise or submit to the jury issues not raised by the pleadings. State v. Smith, 119 Mo. loc. cit. 447. Nor could the words “with the intent to injure and defraud” supply the place of the words “with intent to have same uttered and passed,” because where a particular intent is descriptive of a crime, this must appear in the indictment. 1 Stark. Cr. PI. 177; People v. Wilber, supra. If, on the other hand, the third count is bottomed on section 3646, already quoted, then that count is bad, because being based on that section it does not allege that defendant did “feloniously pass, utter, and publish, and publish as true,” etc. And the same line of remark is applicable in this connection to section 3646, as to section 3634. The count is bad under either section. Numerous other errors are assigned, but it is unnecessary to discuss them; it will be time enough to do this when an indictment proper in form and substantial in allegation is presented for our consideration. Judgment reversed and cause remanded. All concur.