State v. Hascall , 284 Mo. 607 ( 1920 )

Appellant was charged by information in the Hannibal Court of Common Pleas with having uttered and published as true a forged instrument with knowledge of the forgery as defined in Section 4656, Revised Statutes 1909, in order to obtain $805 of the property of Mary E. Lynch, with intent then and there to defraud. Upon a trial he was convicted and sentenced to two years' imprisonment in the penitentiary.

For many years prior to the time the offense is alleged to have been committed, October 28, 1918, Mary E. Lynch, a widow, had lived in Ralls County in the immediate neighborhood of the appellant. Sometime during the latter part of September, 1918, or about one month before the offense is alleged to have been committed, she removed to Frankford in Pike County. She was about 58 years of age, somewhat infirm and feeble in health. Her inability to write rendered it necessary in her correspondence and the transaction of other business, for her to depend upon others.

On the 10th day of October, 1918, a registered letter addressed to the prosecutrix at her former residence in Ralls County came into the possession of the appellant. It contained a check for $805 payable to Mary E. Lynch. Appellant signed for this letter and took possession of same. He then went to the Hannibal Trust Company and deposited the check in the name of Mary E. Lynch, the payee, by Willie Hascall. In so doing he stated to the cashier that he was to have the money, and upon being informed that he must procure written authority therefor he returned later with the following writing:

"October 28, 1918. I give Willie Hascall the right to use my money in any way he wants to. (Signed) Mary E. Lynch. Grace Fay. Willie Hascall."

The body of this instrument and the signature of Willie Hascall thereto were stated by the cashier to have been in the handwriting of the appellant.

When appellant brought the instrument to the bank the cashier wrote opposite the name of Grace Fay the word "witness" and endorsed on the back of same "Mary Lynch authority to Willie Hascall." Upon the receipt of this instrument the bank, as directed by the appellant, placed the amount of the check to his credit. The prosecutrix denies ever having given the appellant authority to act for her in this behalf or otherwise.

Appellant's contention that his utterance of the instrument in question was under the authority of the prosecutrix is supported by his testimony and that of the woman Grace Fay alone. He admits that the writing or order purporting to confer this authority was not executed nor had it been seen by the prosecutrix, but was framed and signed by himself and Grace Fay.

There was also testimony that when the prosecutrix resided in appellant's immediate neighborhood he had signed checks for her and had been accustomed to receive her mail. The jury gave no credence to appellant's testimony.

The charging part of the information is as follows:

"That Willie Hascall, on the ____ day of October, A.D. 1918, at the Township of Mason, County of Marion, did then and there unlawfully, feloniously pass, utter and publish as true to the Hannibal Trust Company, a banking corporation legally organized and existing under and by virtue of the laws of the State of Missouri, located and doing a general banking business, at Hannibal, Mason Township, Marion County, Missouri, and order which was falsely forged and counterfeit of the tenor as follows: ``October 28, 1918, I give Willie Hascall the right to use my money any way that he wants to. Mary E. Lynch. Witness: Grace Fay, Willie Hascall.'

"The signature of Mary E. Lynch on the order heretofore mentioned is not her signature and that said Willie Hascall unlawfully and feloniously and knowing the signature to be false and a forgery did then and there utter, pass and publish at the Hannibal Trust Company above mentioned and did then and there unlawfully and feloniously and by means of said false and forged order obtain and get eight hundred and five dollars of the value of eight hundred and five dollars lawful money of the United States then and there being the property of Mary E. Lynch, with the intent then and thereby unlawfully, feloniously and willfully to injure, cheat and defraud, contrary etc."

I. It is contended that the trial court erred in permitting the prosecuting attorney, after the jury was sworn, to amend the information by striking out the word "institution"Information: as the same appeared therein as a part of theAmendment. designation of the character of the Trust Company and the insertion in lieu thereof of the word "corporation." The averment as to the bank was not essential to charge the crime denounced by the statute. The offense consists, as defined in Section 4656, Revised Statutes 1909, under the facts adduced, in the felonious uttering and publishing as true of the instrument described, with knowledge at the time that the same was false and forged, with intent to cheat and defraud Mary E. Lynch, etc.

The only pertinency of the averment as to the character of the bank would be to show how the falsely uttered instrument could effect a fraud. That such allegation was not necessary is evident from the instrument itself as set forth in the information, which sufficiently discloses its apparent legal efficacy and hence its nature as calculated to defraud. The averment, therefore, as to the bank was extrinsic (People v. Stearns, 21 Wend. (N.Y.) 409) and may be construed as surplusage. [State v. Harris,209 Mo. 423; State v. Chissell, 245 Mo. 549.] Thus considered, the interlineation in no wise changed the nature of the charge, was not misleading and placed no burden upon the accused other than that imposed under the information as originally framed. Under such a state of facts there can be no tenable basis for a claim of prejudice.

We recently held in State v. Feeler, 284 Mo. 673, affirming a like rule announced in State v. Walton. 255 Mo. l.c. 242, that such a change as is here complained of was permissible under our statute regulating amendments to indictments and informations. [Sec. 5061, R.S. 1909.]

Appellant cites in support of his contention our ruling in State v. Henschell, 250 Mo. 263. We there construed an information charging an offense against a corporation, and hence an averment as to its corporate character was necessary. Our ruling in State v. Samuels, 144 Mo. 68, in so far as it requires specific proof of an immaterial allegation, has been overruled by the Chissell case, supra.

State v. Jackson, 90 Mo. 156, holds to the contrary of appellant's contention.

In State v. Pierce, 136 Mo. 34, there is no ruling which by implication even can be said to sustain appellant's contention.

In State v. Patterson, 159 Mo. l.c. 101, the crime was alleged to be the embezzlement of a company's money and its character, whether incorporated or not, was an essential averment. Not so here.

While it is true in a criminal charge that nothing must be left to intendment or implication, this rule must be construed as having reference to such allegations as are necessary to inform the defendant of the nature and cause of the accusation against him; and not to extrinsic matter the averment of which is unnecessary and if averred need not, as we said in the Harris and Chissell cases, supra, be proved. Nothing more than this was meant in State v. Meysenburg, 171 Mo. l.c. 22, in which the ruling was in reference to the corporation from which the defendant was alleged to have received a gift or bribe. The materiality of the averment under such a state of facts as to the nature of such person, whether natural or artificial, becomes apparent. That is not the case at bar.

In State v. Washington, 259 Mo. 335, the statute (Sec. 4643, R.S. 1909) upon which that prosecution was based expressly denounces the offense of forging, etc., certain evidences of debt, purporting to be issued by an incorporated bank. Thus it will appear that the statute rendered an averment of the character of the bank necessary in a prosecution thereunder. From all of which we hold that appellant's contention is devoid of merit.

II. It is contended that the use of the word "and" instead of the word "an" in the information was error. This contention is trivial. The error clearly appears to have been clerical. It could not have misled or otherwise prejudiced theClerical rights of the appellant. The statute forbidding aError. reversal for an immaterial variance (Sec. 5114, R.S. 1909) may with reasonable propriety be applied as a sufficient answer to this contention. We said as much in State v. Witherspoon, 231 Mo. l.c. 717, and cases there cited.

III. Appellant contends that instruction numbered one, which described the falsely uttered order, did not contain the word "witness" opposite the name of Grace Fay as in the information. The omitted word was endorsed on the order after itVariance. had been received by the cashier of the bank. It was therefore no part of the falsely uttered instrument and it might properly have been omitted from the information as well as the instruction. The alleged variance was, under the statute, not material to the merits of the case and hence not prejudicial. [State v. Carragin, 210 Mo. l.c. 371; State v. Sharpless, 212 Mo. l.c. 202; State v. Jackson, 221 Mo. l.c. 506; State v. Witherspoon, 231 Mo. 717; State v. Shirley, 233 Mo. l.c. 343; State v. Morehead, 271 Mo. 87.]

IV. The instructions given by the court on its own motion, numerically designated, are assigned as error. Only instruction numbered one, which we have considered, is urgedInstructions. by the appellant in his brief as being improper. An examination of the others discloses that they are drawn in conformity with approved precedents and we overrule the assignment of error in regard thereto.

V. The complaint that the verdict of the jury was the result of prejudice finds no resting place in the record save in a so-called supplemental motion for a new trial. An attempt to preserve errors in this manner is not authorized by our procedure. The statute (Sec. 5285, R.S. 1909) requires a motion for a new trial to be filed within four days after the verdict of the jury or the finding of the court. This we have uniformly held to be mandatory. [State v. Simenson, 263 Mo. l.c.Motion for 269; State v. Maddox, 153 Mo. 471.] TheNew Trial: supplemental motion for a new trial was not filedSupplementary. until more than thirty days after the return of the verdict. Errors assigned therein are therefore not so preserved as to authorize a review of same. [State v. Brooks, 92 Mo. l.c. 592.]

VI. The prosecuting attorney in reading the falsely uttered order to the jury was directed by the court to omit the word "witness" opposite the name of Grace Fay as theReading False same appeared in the information. We haveOrder to Jury. heretofore disposed of this contention adversely to the appellant in holding that the word omitted was no part of the order charged to have been falsely uttered. It was therefore surplusage and the court did not err in directing that it be not read. The technical rule (1 Whar. Cr. Ev. (10 Ed.) p. 322) cited by appellant to sustain his contention is not applicable in this behalf under our liberal procedure, which, as we have shown, has express statutory sanction.

VII. Error is assigned in the court permitting the trial to proceed without the re-arraignment of the appellant after the prosecuting attorney had been permitted to substitute the word "corporation" for that of "institution" inArraignment. the information. We have heretofore incidentally disposed of this complaint in holding that the change or interlineation was immaterial. If of this character, it is idle to contend that a failure to re-arraign appellant was error. Presenting, as the information did, the same charge after as before the interlineation was made, and the appellant having prior to the change formally announced ready and thereafter participating in the trial he will not be heard to contend that he had not been arraigned. We so declared in State v. Loesch, 180 S.W. l.c. 879, following State v. O'Kelley, 258 Mo. 356, to which cases the curious may refer for more elaborate reasons as to the conclusion reached. We have no hesitancy in saying, as was said in the O'Kelley case, that this contention, in view of the language and evident purpose of the statute (Sec. 5165, R.S. 1909), is "a bald technicality and without merit."

VIII. Under no reasonable construction of the testimony can it be held that a demurrer to the testimony should have been given. There was, in our opinion, ample evidence of the appellant's guilt. His testimony to the contrary, supportedDemurrer to alone by the witness Grace Fay, was not believed byTestimony. the jury. They chose to believe the witnesses for the State. This was clearly within their province; the record disclosing no reason why we should invade it, the judgment is affirmed.

All concur.