State v. Watson

65 Mo. 115

• Court: Supreme Court of Missouri
• Decided: April 15, 1877
• Status: Published

Opinions

Henry, J.

indictment: guage°iy lan

In the Iron Circuit Court an indictment was preferred against defendant, of which the following is a copy: The Grand Jurors, &c., present that one D. A. Watson, late, &c., on the 16th day of February, A. H. 1876, at the county, &c., did falsely, fraudulently and feloniously sell, exchange and deliver, for the consideration of five hundred and fifty dollars, to the Ironton Manufacturing Company, as true, a certain falsely made and forged draft, purporting to be made and issued by the First National Bank of Macomb, in the State of Illinois, a bank duly incorporated under the laws of the United States, and purporting to be drawn on the American Exchange National Bank of New York, which said last mentioned falsely made and forged draft is as follows, (copying tlie draft), with the intent to defraud the said Ironton Manufacturing Company; and that the said E. A. Watson, at the said time he so sold, exchanged and delivered the said last mentioned falsely and forged draft as aforesaid, then and there, to-wit, on the said sixteenth day of February, A. D. 1876, well knowing the same to be falsely made and forged, contrary, etc.” Defendant was tried and convicted, and sentenced to the penitentiary for eight years, and the cause is here on writ of error, and the only question is as to the sufficiency of the indictment. Section 21, page 471, Wagner’s Statutes, provides that “ every person who, with intent to defraud, shall pass, utter or publish, or offer, or attempt to pass, utter or publish as true, any forged, counterfeited, or falsely uttered instrument or writing, or any counterfeit, or any imitation of any gold or silver coin, the altering, forging or counterfeiting of which is hereinafter declared to be an offense, knowing such instrument, writing or coin to be altered, forged or counterfeited, shall, upon conviction, be adjudged guilty of forgery in the same degree as hereinafter declared for the forging, altering or counterfeiting the instrument, writing or coin so passed, uttered or published, or offered or attempted to be passed, uttered or published.” By the 8th section, page 468, the counterfeiting, forging or uttering such an instrument as that described in the foregoing indictment, is made forgery in the second degree, the punishment for which, by section 29, page 472, is imprisonment in the penitentiary not less than five nor more than ten years. If the indictment is good under section 21 it is unnecessary to notice the other points made-in the brief of defendant’s counsel.

indictment: §raftns °lse

It will be observed that it contains every material allegation required by that section ; but instead of the words “ pass,” “ utter ” and “ publish ” substitutes the words “ sell,” “ exchange ” and “ deliver.” Do these words, in connection. with the acts charged, sufficiently describe the offense, or is the pleader confined to the words in the section ? It is generally, not,, however, invariably, sufficient to describe the offense in the words of the statute; but it does not follow that other-words may not be substituted. Selling, exchanging or-delivering a bank bill or a piece of money is in common parlance passing the bill or money. The plain or ordinary and usual sense of the word “ pass,” as applied to coin or bank notes, is to deliver in exchange for something else,, and is equally expressed by the words “ sell,” “ exchange ” or “ deliver.” The judgment will be affirmed.

Nathan G. Kotins for the motion.

I. The common, ordinary meaning of “ pass ” is to go-by, to omit; of “ utter,” to speak, to pronounce; or “ publish,” to make public, to advertise ; but the legal meaning of “ utter ” and “ publish ” is to declare or assert, bywords or actions, that a forged paper is good, and it is passed when it is taken by the person to whom it is paid with this representation. Bishop’s Statutory Crimes, 306.,

II. It has been solemnly decided by courts of high authority that a defendant cannot be convicted on an indictment which charges that he “ sold, exchanged and. delivered ” forged paper, by proof that he passed it, because the two offenses are essentially different and vice versa. Van Valkenberg v. The State, 11 Ohio 404 ; Hutchinsv. The State, 13 Ohio 198. See, also, U. S. v. Nelson, 1 Abbott 135.

III. At common law the crime of forgery could only be committed by falsely making or altering a written, instrument. Passing a forged paper, or selling it with intent to have it passed, was a common law cheat, and it is. only forgery because the statute makes it so. This forgery is, therefore, strictly a statutory crime. It is settled law that an indictment for a statutory crime must charge the essential elements necessary to constitute it: must charge all the circumstances which come into the definition of the crime as defined by the statute, and must charge not only the statutory definition of a crime, but those which constitute the particular crime indicted.” State v. Helm, 6 Mo. 263 ; State v. Boss, 25 Mo. 426 ; State v. Evers, 49 Mo. 542 ; Bishop’s Statutory Crimes § 37; Kelley’s Criminal Law, “ Indictments State v. Beaky, 62 Mo. 40 ; State v. Howerton, 59 Mo. 91; State v. Hopper, 27 Mo. 599; State v. Chunn, 19 Mo. 233. The true rule drawn from the whole body of the law appears to be this : "Wherever the statute creates a crime and defines the facts which constitute it, there the language of the statute must be followed, and “ equivalent ” words won’t do. ?

The other-judges concur.

Arrirmed.