State v. Small , 313 Mo. 66 ( 1926 )

The plaintiff in error was charged by information in the Circuit Court of Greene County with forgery in the third degree of a pecuniary demand in that he made a false and fraudulent indorsement on the front of a certain instrument. Upon being arraigned he entered a plea of guilty and was sentenced to two years' imprisonment in the penitentiary.

Thereafter upon the complaint of the plaintiff in error a writ of error was issued by this court directed to the judge of the Twenty-third Judicial Circuit in which the sentence had been pronounced against him. In compliance therewith the clerk of the criminal court in that circuit has sent to this court a transcript of the record and proceedings against the plaintiff in error in this case.

The copy of the information upon which judgment was rendered against the plaintiff in error, omitting formal matters, is as follows:

That F.C. Small "did then and there wilfully, unlawfully and feloniously forge, counterfeit and falsely make a certain false, forged and counterfeit indorsement upon the front of a certain instrument in writing by which a pecuniary demand, obligation, right and claim to money purported to be conveyed, transferred and created, said indorsement purporting to be made by one A.C. Lucas, which said false, forged and counterfeit indorsement was so forged, counterfeited and falsely made upon a draft of the tenor following: that is to say,

$178.00 — Union Indemnity Company No. B. 657, New Orleans, La., Oct. 7th, 1924 — Pay to the order of A.C. Lucas, One Hundred Seventy-eight and No/100 — Dollars. Value received and charge the same to account of Elisha Carter, Ass't Supt. Claim Division, (official title). Marine Bank Trust Co., New Orleans, La., (14-22), Policy No. MB2 56826 Claim No. B. 781. This draft will not be honored unless it is properly endorsed on the back and the attached voucher dated and signed by the Payee. Received of Union Indemnity Company, One Hundred Seventy-eight No/100 Dollars, in full settlement of any and all claims which I now have or may have hereafter by reason of any loss under the policy of insurance issued to me by the said Company by reason of a burglary or theft committed on the premises described in the said policy on or about the 17th day of August, 1924, and in consideration of the said payment, it is hereby agreed that in the event of the recovery of any of the stolen property will be returned to the Company, the full sum paid for loss thereon. Dated at Springfield, Missouri, October 9, 1924,

with intent then and there and thereby feloniously to injure and defraud, contrary, etc."

This information is based upon Section 3436, Revised Statutes 1919, which is as follows:

"Every person who, with intent to injure or defraud, shall falsely make, alter, forge or counterfeit any instrument or writing, being or purporting to be the act of another, by which any pecuniary demand or obligation shall be or purport to be transferred, created, increased, discharged or diminished, or by which any rights or property whatsoever shall be or purport to be transferred, conveyed, discharged, increased or in any manner affected, the falsely making, altering, forging or counterfeiting of which is not hereinbefore declared to be a forgery in some other degree shall, on conviction, be adjudged guilty of forgery in the third degree."

I. The accused is not precluded by his plea of guilty from questioning by appeal or writ of error the sufficiency of the information upon which judgment of conviction was rendered against him. If the information charges no offense thePlea of judgment against him is invalid. As this court said inGuilty: State v. Kelley, 206 Mo. l.c. 695, a plea of guiltyRight to admits the truth of whatever is sufficiently charged inAppeal. the information, but no more, and it will not prevent the accused from taking advantage of the defects apparent of record on writ of error. [Citing cases.]

II. The information charges that the accused falsely made a certain false, forged and counterfeit indorsement upon the front of a certain instrument, etc., and sets out the instrument inhaec verba. On its face appears the following: "This draft will not be ignored unless it is properly indorsed on the back and the attached voucher dated and signed by the payee." The forgery alleged in the information is that the accused indorsed the name of the payee, A.C. Lucas, on the front of the draft. To render it negotiable it was necessary, under its express terms, that it be indorsed on the back of same by the payee and that the attached voucher be dated and signed by the payee. Neither of these acts are charged as having been committed by the accused. They are averments essential to the validity of the information. A charge of forgery of an indorsement must contain such averments as will make the offense affirmatively appear. When an information undertakes to set out in what the forgery consists it must state it truly and prove it as stated. [Crossland v. State, 77 Ark. 537; McDonnell v. State,58 Ark. 242; 3 Bish. Cr. Pro. (2 Ed.) sec. 410; 26 C.J. p. 944, sec. 91, n. 28; Commonwealth v. Spilman, 124 Mass. 327, 26 Am. Rep. 668; People v. Marion, 28 Mich. 255.]

Furthermore, if the instrument charged to have been forged is conditional as in this case a compliance with the conditions must be charged in the information. [State v. Leonard, 171 Mo. 622; State v. McConnell, 240 Mo. l.c. 277; Manaway v. State,44 Ala. 375; Carder v. State, 35 Tex.Crim. App. 105, 31 S.W. 678; 26 C.J. p. 944, n. 15.] This information shows on its face that no forgery of an indorsement could be made, except on its back; and such forgery would not make the instrument negotiable, unless the attached voucher purported to be dated and signed by the payee.

It was attempted by this information to charge forgery in the third degree under Section 3436, supra. Under the terms of the instrument upon which the fraudulent indorsement is averred to have been made no forgery purporting to have been the act of another was charged whereby any demand or pecuniary obligation was created or by which any rights of property were in any wise affected within the meaning of the statute. In criminal pleadings all things set forth in a statute which are essential ingredients of an offense must be alleged. [State v. Plotner,283 Mo. 83, 222 S.W. 767.]

This judgment must therefore be reversed and it is so ordered. All concur.