Opinion
December 12, 1927.
1. FORGERY: Uttering Counterfeit Check. To sustain a charge under Section 3429, Revised Statutes 1919, which makes it a felony to utter, sell or exchange a falsely made, altered, forged or counterfeit note, check, bill or draft or other instrument, the counterfeiting of which is by the last preceding section declared to be an offense, the instrument uttered must be a forged instrument.
2. ____: ____: Fictitious Person: Sufficient Testimony: Rural Route. The charge being that defendant uttered and passed a check drawn on a bank by a fictitious person, testimony by the person to whom the check was presented and cashed that defendant gave his address as Route One and the address of the person whose name was signed to the check as on Route Six, both of which she noted on the back of the check; testimony by the sheriff that he made an investigation for the purpose of finding out whether a man whose name was signed to the check as the maker lived in the county, and found no one who knew him; testimony by the postmaster at the town in which the bank was located that he made a search of his postal records and could not find the name of the signer; and testimony of the cashier of the bank that the man whose name was signed to the check had no account in the bank, though not extensive or exhaustive, is competent, and is sufficient to authorize a submission to the jury of the question whether the man whose name was signed to the check as maker was a fictitious person.
3. ____: ____: Name of Payee: Illegible. The instrument which purports to be forged must have, if genuine, legal efficiency, in order to make the act of uttering it a crime. But it will not be held that the check which defendant is charged with having uttered was so nearly illegible as to make it impossible to identify the name of the payee as that of defendant, where there are witnesses who testify that the name, although badly written, is that of defendant, and the person to whom the check was presented and by whom it was cashed testifies that defendant presented the check as his own and as payable to himself, and the check is itself exhibited to the jury and they find that the defendant was the payee named in the check.
Corpus Juris-Cyc. References: Criminal Law, 17 C.J., Section 3350, p. 89, n. 65; Section 3351, p. 91, n. 76. Forgery, 26 C.J., Section 20, p. 906, n. 40; Section 122, p. 963, n. 4; Section 153, p. 977, n. 38.
Appeal from Adair Circuit Court. — Hon. James A. Cooley, Judge.
AFFIRMED.
J.E. Rieger for appellant.
(1) To constitute the crime of forgery, and the uttering would be governed by the same rule, the instrument on its face must show some legal efficiency. State v. Leonard, 171 Mo. 622; State v. Warren, 109 Mo. 430; State v. Cordray, 200 Mo. 29. (2) There was no evidence whatever that the defendant knew that the check in question was a forgery. In the case of State v. Chissel, 245 Mo. l.c. 557, the question of the sufficiency of that point is stated. Not only is there no evidence that defendant knew that the check was a forgery but also no proof of any kind that the check was forged; that it was not the act of Walker. State v. Young, 237 Mo. 176. (3) The name of G.H. Thompson must be the name of the payee, for it was thus set out in the information. State v. Flora, 109 Mo. 296; State v. Chamberlain, 75 Mo. 382; State v. Fay, 65 Mo. 490. If there is a reasonable doubt as to the name, the court as a matter of law should so find, and discharge the defendant.
North T. Gentry, Attorney-General, and David P. Janes, Assistant Attorney-General, for respondent.
(1) The information as filed is sufficient both in form and in substance, containing all the essential elements necessary to constitute the crime therein charged, and clearly informed the defendant of what offense he was charged, and of which he was convicted. (2) The testimony is ample evidence to submit the case to the jury. State v. Anno, 296 S.W. 825.
In the Circuit Court of Adair County, February 18, 1926, the defendant was found and adjudged guilty of uttering a forged instrument, and his punishment fixed at two years in the State penitentiary. He appealed in due form.
The information charged that the defendant uttered and passed to one Bessie Fortney a forged and counterfeited check purporting to have been made by W.N. Walker, a fictitious person, drawn on the National Bank of Kirksville, Adair County.
Bessie Fortney testified for the State that October 3, 1925, she was employed in Moore's Bakery. The defendant came into the place, purchased some cinnamon rolls at the price of twenty cents and gave in payment a ten-dollar check, identified by her and put in evidence, drawn on the National Bank of Kirksville, payable to G.H. Thompson, signed by W.N. Walker, and indorsed on the back by W.N. Brown. She accepted the check and handed defendant the change. She knew the defendant; knew he was not Brown.
Upon presentation of this check to the bank payment was refused and notation made, "No account." When defendant returned to the bakery a week later Miss Fortney charged him with having passed the check. He denied it.
The cashier of the First National Bank of Kirksville testified that the maker of the check, W.N. Walker, was not a customer of the bank and had no deposit there.
Other evidence was offered by the State tending to show that no such person as W.N. Walker lived in that community. This will be noticed below.
The defendant swore he was not in the bakery the evening of October 3, 1925; that he never had the check; knew nothing about Walker or Brown; that the evening of October third he was making purchases at another store in town. He offered evidence in support of his statements. He had served overseas in the United States Army, and was twice wounded. It was also proved that he had served a term in the penitentiary for forgery.
At the conclusion of the State's case, and again at the close of all the evidence, the defendant demurred to the evidence and his demurrers were overruled. The case was submitted to the jury and a verdict of guilty returned.
I. Appellant assigns a number of errors in his motion for new trial, and in his amended motion, both filed in due time. These motions, in several forms, assign error to the action Fictitious of the court in overruling the demurrers to the Name. evidence and in failing to direct a verdict for the defendant.
He argues that a case was not made out because there was no evidence that the check in question was forged. The charge is under Section 3429, Revised Statutes 1919, which makes it a felony to utter, sell or exchange, etc., any falsely made, altered, forged or counterfeited note, check, bill or draft or other instrument, etc., the counterfeiting of which is by the last preceding section declared to be an offense. The preceding section (Section 3428) describes the crime of forgery.
Necessarily the instrument which is uttered, constituting a crime under Section 3429, must be a forged instrument. The precise point made by appellant is that there is no proof that W.N. Walker was a fictitious person, as charged. The evidence upon that point is this: Bessie Fortney testified that when defendant came into the bakery and offered the check to pay for cinnamon rolls, he gave his address as Route One, and she put it on the back of the check. He gave the address of Walker as Route Six, which she noted in pencil on the back of the check.
The sheriff testified that he made an investigation for the purpose of finding out whether a man lived in Adair County by the name of W.N. Walker. He found nobody who knew W.N. Walker. That was the extent of his investigation.
Ray Waddill, the postmaster, testified that he made a search of his postal records to see if he could find the name of W.N. Walker. He found no such name in his records.
The cashier of the bank, Roy Omar, testified that W.N. Walker had no account at the bank.
That was all the evidence offered by the State to prove that the name W.N. Walker was fictitious.
It has been held that evidence of the kind introduced is competent on such an issue, even though it is not extensive or exhaustive. [26 C.J. 963; State v. Stegner, 276 Mo. l.c. 438.] There might very well be a man named W.N. Walker who would draw a check on a bank in which he had no funds. The fact that a check was so drawn would not be proof that there was no such person. The statement of the sheriff was somewhat vague and general. He does not say how extensive his investigation was. He made inquiries "around over town of fellows we thought might know." He was not cross-examined as to the extent of his knowledge.
The postmaster's testimony was more convincing. Appellant makes the point that no witness who lived on Rural Route Six testified that Walker was not on that route. True enough, a rural mail route is not like a street or road, by naming which one can fix the location of a resident on it. If it is asserted that a person lives on a certain highway or in a certain township, it is easy to ascertain whether the assertion is true, because the territory has fixed limits. A rural mail route drags an irregular trail from the town where the mail is distributed, across half the county, and some times does not stop at the county line. Anyone living within a convenient distance, or an inconvenient distance, may have a mail box on the mail carrier's course. The territory served has no fixed limits; no one on the route is likely to know everybody who gets mail on it because of the indefiniteness and extent of the territory.
But to say that one is "on" a rural route is to say he gets his mail there, because it is a mail route. He is located, not by the place where he lives but by the route on which he gets his mail. Miss Fortney testified that defendant "gave me Mr. Walker's address as Route 6." If that means anything, it means a designation of the place where Walker got his mail. When the postmaster of Kirksville swore that he found in his postal records no such name as W.N. Walker, that general statement necessarily included Route Six, and contradicted the defendant's statement to Miss Fortney. It was the only way to prove that Walker was not "on" the route. Appellant made no attempt to show there was such a person as Walker. He stoutly denied passing the check, or any knowledge of it. The evidence was sufficient to authorize a submission of the question to the jury whether W.N. Walker was a fictitious name.
II. It is further claimed that the demurrer to the evidence should have been sustained because the check did not possess legal efficiency, if genuine. This, on the ground that the check is so nearly illegible as to make it impossible to identify the name of the payee as that of the defendant G.H. Illegible Thompson. Of course, the instrument which purports to Check. be forged must have, if genuine, legal efficiency in order to make the act a crime. [State v. Cordray, 200 Mo. l.c. 31; State v. Jackson, 221 Mo. l.c. 504-505.]
The check is attached to the record. A photostatic copy, enlarged, is attached to the briefs. The name of the payee is vague, except the initials "G.H." are plain, and the first letter of the surname seems to be "T." This name might well be Thompson, carelessly written. The banker, Roy Omar, qualified as an expert on handwriting, examined the check, and swore the "G.H." was plain, but the rest was questionable. He was not sure.
Ray Waddill, the postmaster, testified that he thought the name was Thompson. Defendant introduced one witness who testified that in his judgment it was not "Thompson" but "Johnson." The check was exhibited to the jury so that they might determine for themselves whether the name was that of Thompson, the defendant.
There are many signatures, even of prominent persons, at which handwriting experts would halt if asked whether each letter in the name was legible. All the writing in the check appears to be in the same hand. According to the testimony of Miss Fortney, the defendant himself produced the check as his own, therefore payable to himself. The evidence is sufficient from which the jury could find that the name written in the check, although very badly written, was the name of G.H. Thompson, and it corresponds to the name alleged in the information. No point is made that the name indorsed on the back is not that of the payee, but another.
III. Alleged errors in receiving and rejecting evidence, and in giving and refusing instructions, are not saved Assignments. with particularity in the motions for new trial. [State v. Standifer, 289 S.W. l.c. 857.]
The judgment is affirmed. All concur.