State v. Taylor

22 S.W. 1103, 117 Mo. 181, 1893 Mo. LEXIS 339

• Court: Supreme Court of Missouri
• Decided: June 27, 1893
• Status: Published

Opinion

Sherwood, J.

— The count in question is bottomed on sections 3633, 3634, R. S. 1889, which are as follows:

“Sec. 3633. Every person who shall forge or counterfeit, or falsely make or alter, or cause or procure to be forged, counterfeited or falsely made or altered: First, any promissory note, bill of exchange, draft, check, certificate of deposit, or other evidence of debt, being or purporting to be made or issued by any bank incorporated under the laws of this state, or of any other state, territory, government or country; or, second, any order or- check being or purporting to be drawn on any such incorporated bank, or any cashier thereof, by any other person, company or corporation, shall, upon conviction, be adjudged guilty of forgery in the second degree.

“Sec. 3634. * * * Every person who shall sell, exchange or deliver, or offer to sell, exchange or deliver, or receive upon a sale, exchange or delivery for any consideration, any falsely made, altered, forged, or counterfeited note, check, bill, draft or other instrument, the falsely making, altering, forging or counterfeiting of which is by the last section declared to be an offense, knowing the same to be falsely made,' altered, forged or counterfeited, with intent to have the same altered or passed, shall be adjudged guilty of forgery in the second degree.”

Counsel are in error in assuming that the count before us is based on section 3646 Revised Statutes, 1889, as will readily appear on inspection of that section. The count is well enough, - and this is easily proven by reference to approved precedents.

The offense in this case is the selling, exchanging and delivering of a certain falsely made and forged draft, the falsely making of which is declared by the next preceding section (3633) to be an offense, knowing the same to be falsely made, with intent to have the same uttered or passed. The gist of the offense, to-wit: the selling, etc., is charged to have been feloniously done, and this suffices. It was not at all necessary to charge that the selling was done with a felonious intent to have the same uttered or passed. 3 Chitty’s Grim. Law, 1048; 3 Greenleaf on Evidence, sec. 104; 2 Archbold’s Criminal Practice and Pleading, 534; State v. Kroeger, 47 Mo. 552; State v. Fisher, 65 Mo. 437; King v. Hunter, 2 Leach, 711; Partees’ Case, 2 Leach, 898; Lovell’s Case, 1 Leach, 282; Jones’ Case, 1 Leach, 243.

The ease at bar is obviously distinguishable from "those where an assault with intent to kill is charged, in which cases it is indispensable that the assault was made with a felonious intent. State v. Clayton, 100 Mo. 516, and cases cited.

The words marked in brackets, “with intent to defraud,” constitute no part of the sections upon which the count is drawn, but may along with the words associated with them be rejected as surplusage, and still leave enough to constitute a valid charge. State v. Meyers, 99 Mo. loC. cit. 114 and cases cited.

Judgment reversed and cause remanded.

All-concur.