State v. Strack , 316 Mo. 591 ( 1927 )

A grand jury in the Circuit Court of Gasconade County returned an indictment charging the defendant, in violation of Section 3437, Revised Statutes 1919, with falsifying an entry in a book kept by the Collector of that county. On a trial August 4, 1925, a jury found him guilty and assessed his punishment at two years' imprisonment in the penitentiary. A judgment followed from which he appealed.

The record shows judgment rendered and sentence pronounced before the filing of a motion for new trial. For that reason we are unable to consider any errors preserved in the bill of exceptions. We have only the record proper for consideration, which shows that no allocution was accorded the defendant. The premature judgment might be set aside for that reason, and the cause remanded so that the entry of judgment might be entered in regular course. However, as we view it, it is unnecessary to consider that feature of the case. Omitting caption and signature the indictment is as follows:

"The grand jurors for the State of Missouri, impaneled, sworn and charged to inquire within and for the body of the County of Gasconade and State of Missouri, upon their oaths present and charge that one Walter W. Strack, on the ____ day of March, 1923, at and in the County of Gasconade and State of Missouri, in a certain book, record and journal made and kept by the tehn and there duly elected, qualified and acting Collector of the Revenue of the said county, to-wit: One Lorenz Emo, the said book, record and journal being then and there the Land Delinquent List of Gasconade County, Missouri, for the year 1922, in the office of the said Collector, which said book, record and journal was then and there authorized and required by the laws of the State of Missouri to be made and kept by the said Collector for the purpose of returning and showing to the County Court of the said County of Gasconade, Missouri, at his annual March settlement, what taxes on land and town lots for the year 1922 were delinquent and unpaid, did then and there, willfully, falsely and feloniously falsify an entry by then and there falsely and feloniously inserting in said book, record and journal the following false and fraudulent words and figures, to-wit:

"Ebker Albert 40 S2 lot 1 N.W. 6 43 4 1400 1 82 2 80 15 3 36 30 3 50 by reason of which words and figures, so falsely and feloniously entered it was made to appear, and did appear that said Albert Ebker had not paid his taxes on lands for the 1922, described as 40 acres, S2 lot 1 NW Section 6 Twp. 43 Range 4 on an assessed valuation of $1400, to the amounts of: State Tax $1.82, County Tax $2.80, Road Tax District No. 15, $3.36, and School Tax District No. 15, $3.36, and School Tax District No. 30 Teachers $3.50.

"When in truth and in fact the said Albert Ebker had paid prior to the first day of January, 1923, all the public taxes including all state and county taxes levied against him and upon his property for the year 1922 and for all years prior thereto; that the defendant well knew at the time when he inserted the aforesaid and fraudulent words and figures in said book, record and journal, that they were false and fraudulent; that defendant did feloniously falsify said entry in said book, record and journal on the ____ day of March, 1923, with the felonious intent then and there and thereby to cheat and to defraud; contrary to the form of the statute in such cases made and provided and against the peace and dignity of the State."

If the indictment is insufficient to charge an offense the judgment must be reversed.

I. The statute under which this charge was preferred (Sec. 3437, R.S. 1919) contains two clauses: It first makes it a felony for anyone with intent to defraud, to make "any false entry" or "falsely alter, destroy or corrupt" any entry, in a book of accounts kept by certain state officers or by any county treasurer.

The second clause makes it a felony if anyone shall falsely alter, destroy, corrupt or falsify any entry in any book, etc., required by law to be kept by any county officer. That clause applies to this case. The particular book upon which the alleged alteration was made was a book kept by the Collector of the county.

Thus it is a felony to "alter or falsify" an entry kept in any book kept by any state or county officer. It is also a felony to make a false entry in any book kept by a state officer, but it is not a crime under that section to make a "false entry" in a book kept by any county officer except the county treasurer. We must assume that the Legislature had sufficient reason for making that distinction. Manifestly, one could not falsely alter, destroy, corrupt or falsify an entry in a book unless there was such an entry to be the subject of such treatment. The indictment, without alleging there was an entry, alleged that the defendant falsified an entry by inserting the following false words:

"Ebker, Albert 40 S2 Lot 1 N.W. 6 43 4 1400 1 82 2 80 15 3 36 30 3 50."

Appellant argues that this is a mere jumble of words without meaning. It is probable that these entries were made under appropriate columns, designated in the book in which they appear, as the name of the person whose taxes were delinquent, a description of the property which was delinquent, its valuation, and the different items of tax assessed against it. The explanation of these entries follow:

". . . by reason of which words and figures so feloniously entered it was made to appear, and did appear that said Albert Ebker had not paid his taxes on lands for the 1922, described as 40 acres, S2 lot 1 NW Section 6 Twp. 43 Range 4 on an assessed valuation of $1400, to the amounts of: State Tax $1.82, County Tax $2.80, Road Tax District No. 15, $3.36, and School Tax District No. 30 Teachers $3.50."

That explanation might have been more specific, but in the absence of an appropriate motion attacking it we hold it sufficient after verdict.

II. The allegation in the indictment that the defendant falsely and feloniously falsified an entry, was a conclusion of the pleader. That was followed by a statement of the fact. He did it "by then and there falsely and feloniously inserting in said book the following false and fraudulent words." It is not the falsification of an entry at all, but the making of a false entry, which is not in violation of the second part of Section 3437. [26 C.J. 833.]

III. But, assuming that the description of what was done was the falsifying or falsely altering an entry, the indictment to be good must have set out the entry falsified. What was the entry in the book which the alteration mentioned renders false? In cases of false pretense, perjury and other frauds, it is necessary to negative the averments of the matter put forward as true.

This principle has been applied to falsely altering a writing. [State v. Fischer, 58 Mo. 256.] Where an instrument, a book or an entry is altered, the indictment charging the offense as a felony must set out the entry, book or writing thus altered.

Furthermore, the allegation of the indictment that the insertion of words mentioned falsified an entry, even if there had been an entry to falsify, fails to show that such words were false. It alleges that the entry was made upon a book containing the land delinquent list of Gasconade County so as to show the valuation; that Albert Ebker had not paid taxes on that land, and that it was returned delinquent. That is the explanation of the entry. There is no allegation that those statements in the book were false. The indictment proceeds as follows:

"When in truth and in fact the said Albert Ebker had paid prior to the first day of January, 1923, all the public taxes, including all State and county taxes levied against him and upon his property for the year 1922 and for all years prior thereto."

There is no allegation anywhere that Albert Ebker owned the land described in the alleged false entry or that it had ever been assessed to him, or that taxes had ever been levied against him on it, or that he had ever paid taxes on it. It is alleged that he had paid taxes levied against him on his land. In order to show that the entry was false it would have to be alleged that this land was his and that the taxes were levied against him.

The indictment, therefore, lacks the directness and precision of averment required in an indictment, on the theory that the law will presume that what the indictment does not charge does not exist. [State v. Zingher, 302 Mo. l.c. 657.]

The judgment accordingly is reversed and the cause remanded. All concur.