State v. Karlowski

Sherwood, J. There are several counts in the indictment under which defendant was convicted. Two of them in their charging parts are as follows: “That one B. Karlowski, on the 25th day of February, 1896, at the county of Lawrence, in the State of Missouri, did then and there unlawfully, feloniously and falsely make and forge a certain instrument in writing, to. wit, a check and order purporting to be the act of one Lorenz Sulkowski by the name, of L., Sulkowski by which a pecuniary demand and obligation for the payment of sixty-five dollars and fifty cents by the said Lorenz Sulkowski by_the name of L. Sulkowski, to the said B. Karlowski, or order purported to be created, which said false and forged instrument and note is of the tenor following, that is to say: “ ‘Lorenz Sulkowski, No. 1. “ ‘Dealer in “ ‘Greneral Merchandise, Brieefield, Mo. “ ‘25 February 18, 1896. “ ‘Pay to the order of Ty Kolms Yii, 65 $ 50c, Sixty-five dollars 50 cents Dollars. “ ‘To Pierce City National Bank, Pierce City, Mo. “ ‘L. Sulkowski.’ “With intent then and there and thereby unlawfully and feloniously to injure and defraud, against the peace and dignity of the State. [466] “That one B. Karlowski, on the 25th day of February, 1896, at the county of Lawrence, in the State of Missouri, a certain forged and counterfeit order and check purporting to be made by one Lorenz Sulkowski by the name of L. Sulkowski, and purporting to be drawn on the Pierce City National Bank, a banking corporation duly incorporated under the laws of the United States, which said forged and counterfeit order and check is as follows: “ ‘Lorenz Sulkowski, No. 1. “ ‘Dealer in “ ‘General Merchandise, Bricefield, Mo. “Pay to the order of B. Karlowski, 65 $ 50c. Sixty-five dollars 50 cents, Dollars. “ íp0 pierce City National Bank, Pierce City, Mo. “ ‘L. Sulkowski.’ “Feloniously did then and there pass, utter, sell, exchange and deliver as true to one L. A. Chapman, cashier of the said Pierce City National Bank, for the-consideration of sixty-five dollars and fifty cents with intent then and there the said L. A. Chapman and the said Pierce City National Bank, to injure, cheat and defraud, he, the said B. Karlowski, then and there, knowing the said order and cheek to be forged and counterfeited, against the peace and dignity of the State.” This indictment is based on sections 3633 and 3634, Revised Statutes 1889. No objection is discovered to the form of this indictment, nor do we discover any variance between the charges and the proof. This case is wholly unlike that of State v. Fay, 65 Mo. 490, for there the indictment charged that the instrument was a promissory note signed by James C. Orr, while the evidence showed a promissory note signed by J. C. Orr, and on this it was properly held that there was a fatal variance between the allegation and the evidence [467] offered in its support. But in that case there is no similar averment to that contained in the words “by the name of L. Sulkowski,” etc., which provided for the introduction of the proof as made. Notwithstanding what is said in the foregoing observations, the judgment can not be permitted to stand because the indictment charging two separate and distinct offenses, the verdict is insufficient in that it is a general one, so that it can not be told on what count of the indictment it is founded. State v. Pierce, 136 Mo. 34. For this error judgment reversed and cause remanded. All concur.