Opinion
No. 42249.
October 8, 1951.
APPEAL FROM THE CIRCUIT COURT, CITY OF ST. LOUIS, EUGENE J. SARTORIUS, J.
No attorney for plaintiff in error.
J. E. Taylor, Atty. Gen., William A. Wear, Asst. Atty. Gen., for defendant in error.
Plaintiff in error, as defendant and so referred to herein, was charged by an amended information in the Circuit Court of the City of St. Louis with violation of § 561.450, R.S.Mo. By this section it is made a felony for any person, with intent to cheat and defraud, to obtain money or property from another by any of the several means or methods therein specifically described. The amended information also alleged under the provisions of the second offense statutes, §§ 556.280 and 556.290, R.S.Mo., a former conviction and sentence of defendant to imprisonment in the Penitentiary of the State of Illinois and his discharge therefrom upon lawful compliance with the sentence. Upon trial defendant was convicted and sentenced to imprisonment in the State Penitentiary for a term of seven years. The case was brought here on writ of error. Defendant is not represented in this court and has filed no brief.
The clerk of said circuit court has certified to this court a transcript of the record proper. In his certificate it is recited that the transcript also contains a true copy of the bill of exceptions, but, in fact, no bill of exceptions is attached to or made a part thereof. The transcript contains a record entry to the effect that on April 16, 1951, defendant, by his attorney, filed "Transcript of Record herein". A purported "Transcript of the Record", bearing no filing endorsement or stamp, was forwarded to the clerk of this court along with the certified transcript of the record proper and is found in the files. It is in the form of a bill of exceptions and bears a certificate of Whit C. Buck, official court reporter, that it is a complete transcript as shown by his notes. There is no record or certificate showing it to have been agreed to by the parties or allowed and signed by the judge and filed as a bill of exceptions, as required by § 546.370, R.S.Mo. 1949 and §§ 1174, 1175 and 1179, Mo.R.S.A. 1939, relating to bills of exceptions in criminal cases. Said §§ 1174, 1175 and 1179 have been repealed as to civil actions, but we have held their provisions are still applicable to bills of exceptions in criminal cases. State v. Stroemple, 355 Mo. 1147, 1151, 199 S.W.2d 913, 915; State v. Harrison, 359 Mo. 793, 795, 223 S.W.2d 476, 478. Neither is it shown to have been agreed to by the parties as a correct transcript of the evidence and proceedings or to have been settled and approved by the trial court as provided by § 512.110, subparagraph 3, R.S. Mo. 1949, relating to the certification of transcripts in civil cases, which by our Rules 1.31 and 1.34 we have also approved as a proper alternative method of certifying for review transcripts including matters of exception in criminal cases. No bill of exceptions or transcript of the record including matters of exception having been properly filed or certified to this court, our review is limited to the record proper. State v. Harrison, 359 Mo. 793, 795, 223 S.W.2d 476, 478; State v. Abbott, Mo.Sup., 236 S.W.2d 592, 594.
The specific charge set forth in the amended information is, in substance, that defendant, with intent to cheat and defraud, did obtain certain money and property therein described from a named corporation by means of a check drawn by him on a bank in which he knew he had no funds. The check, as copied therein, reads as follows:
"Saint Louis, Aug. 1 1949 No. Mercantile — Commerce Bank and Trust Company 4-26 ---- 810 Pay to the order of Cash $25oo -- Twenty-Five ............... No/100 Dollars (Signed) Leslie P. Bird 3843 Sherman Pl."
The information follows the wording of the statute, alleges the facts upon which the charge is based, and is sufficient in form.
The verdict is in words and figures:
"We, the Jury in the above entitled cause, find the defendant `Guilty of One Prior Conviction of a Felony and Obtaining Money and Goods By Means of a Bogus Check,' and assess the punishment at imprisonment in the Penitentiary of the State of Missouri for the period of Seven (7) years.
(Signed) Earnest Fey Foreman."
Section 561.450, under which defendant was charged, insofar as it is applicable to obtaining money or property by the use of a check, reads: "* * * or by means or by use, of any false or bogus check or by means of a check drawn, with intent to cheat and defraud, on a bank in which the drawer of the check knows he has no funds", etc. The provision making it a felony to obtain money or property by the use of a check drawn on a bank in which the drawer knew he had no funds was placed in the statute by an amendment in 1913. Laws 1913, p. 222. Prior to that amendment only false or bogus checks were mentioned. In so amending the statute, the Legislature clearly distinguished a genuine check drawn on a bank in which the drawer knew he had no funds from a false or bogus check, such as one drawn on a non-existent bank or by or payable to a fictitious person.
Defendant was not charged with obtaining the money and property described in the information by means of a false or bogus check. The verdict makes no reference to or mention of the charge alleged in the information. It finds the defendant guilty of the offense of obtaining money and property by means entirely different from the means charged in the information. It, therefore, is not responsive to the issues and is fatally defective. State v. Hinton, 299 Mo. 507, 512, 253 S.W. 722, 723; State v. Thompson, Mo.Sup., 29 S.W.2d 67, 69; State v. Mitnick, 339 Mo. 127, 132, 96 S.W.2d 43, 46.
The cause is reversed and remanded.
All concur.