text:
    THE STATE v. NOAH JACKSON, Appellant.
    Division Two,
    June 8, 1909.
    1. MOTION FOR NEW TRIAL: Filed But Not Overruled Before Judgment. Where defendant’s motion for a new trial in a criminal case was timely filed after verdict and before sentence was pronounced and judgment rendered, the pronouncing of , sentence and .the rendering of judgment while said motion was pending will not deprive defendant of the right to have his exceptions and the evidence considered on his appeal, although his counsel were present when sentence was pronounced and he was asked if he had anything to say why sentence should not be passed upon him. A court is presumed to have knowledge of its own records,, and the pronouncement of sentence and the rendering of judgment were tantamount to a formal overruling of his motion for a new trial.
    2. MOTION TO DISCHARGE: Preservation for Appeal. The record proper should show the filing of all motions. Setting them out in the bill of exceptions and reciting therein that they were filed is not sufficient.
    3. -: Indictment: Clerk's Indorsement. The fact that the clerk had failed to indorse on the indictment the filing thereof and the date of such filing did not deprive the court of jurisdiction to try defendant, either in the court to which the same was regularly returned, or in the court to which the case was taken hy change of venue.
    4. FORGERY: Deposit Slip: Subject of Debt: Ejusdem Generis. An ordinary bank deposit slip or deposit ticket is the subject of forgery. It is an “evidence of debt,” within the meaning of Sec. 2001, R. S. 1899, making it forgery to forge, counterfeit, falsely make or alter “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,” etc.; and even if the rule applied that by the words “or other evidence of debt” is meant something of like kind as those things previously -enumerated, it is of like kind with a “certificate of deposit,” since it simply states that the named depositor has deposited so much money in the hank; and whether negotiable or not, it is important evidence of the amount deposited in a controversy between the bank and the depositor.
    5. -: -: Injury to Another. A bank deposit slip has such legal validity and so affects the legal rights of the hank as to injure the bank if forged. It furnishes to the depositor evidence of the amount of money he has deposited with the bank, and the signature of the cashier thereon being acknowledged to be genuine it is of itself prima-facie evidence that the bank is indebted to the depositor to the amount named therein, and if that amount is increased by the alteration of the depositor there is a resulting injury to the bank. So that where the indictment charges the deposit slip to be an evidence of debt, and sets it forth in haee verba, it is not necessary to allege any extrinsic matter to give the forged or altered slip any force or effect beyond what appears on its face.
    6. -: -: Variance. Where the trial court failed to find that there was any variance between the deposit slip set out in the indictment (which charged that it purported to be signed by “C. E. Packard, Cashier, DeHart” or by “C. E. Packard, Cashier, D”) and the proof (which was to the effect that DeHart, after signing the name C. E. Packard to the duplicate, stamped “Cashier” thereunder, and to indicate who received the deposit added just under the word “Cashier” either the letter “D” or the name “DeHart”), the Supreme Court will not hold that there was a fatal variance between the indictment and proof — the forgery consisting in changing the “$100” named in the duplicate to “$11,000” and in adding as “gold” deposited “$8,000,” and adding the two together, showing a deposit of “$19,000.”
    7. INSTRUCTION: Circumstances: Forgery. The court told the jury in a forgery trial that “it is not necessary to prove that defendant is guilty by the testimony of witnesses who have seen the offense committed. His guilt may be shown by proof of facts and circumstances from which it may be reasonably and satisfactorily inferred.” Eeld, that it would have been more appropriate to have followed approved precedents, yet the instruction is not reversible error, and that is particularly true when it is taken in connection with the full and clear instructions on the subject of reasonable doubt, presumption of innocence, etc., and on the nature and character of the proof necessary to warrant a conviction.
    8. -: Refusing Defendant’s. It is not error to refuse instructions asked by defendant where those given fully cover every subject connected with the offense charged to which the testimony was applicable.

      Appeal from Clay Circuit Court. — Hon. Francis II. Trimble, Judge.
    Affirmed.

      John A. Cross, J. M. Sandusky, R. H. Musser, Pross T. Cross and William Henry for appellant.
    (1) Defendant’s motion for his discharge should have been sustained, for the reason that the court was without jurisdiction to try him on the indictment herein. Sec. 2512, R. S. 1899, requires that indictments . returned by the grand jury ‘ ‘ shall be presented to the court and shall be there filed and remain as records of such court.” Defendant was entitled to know that he was being tried upon the indictment “there filed” in the Clinton Circuit Court, which, if the law has been complied with, is a record of that court, and the State should have shown that the copy of the indictment, upon which defendant was tried, was in fact the indictment “there filed” if in fact one was “there filed,” and the circuit court of Clay county, before exercising jurisdiction of the indictment, should have required the showing in full compliance with this statutory requirement by proof of its filing*, or by amendment of the transcript, if in fact such indictment was “there filed” by the indorsement of the clerk • of said court thereon, showing the date of said filing. State v. Clark, 18 Mo. 432; State v. Gate, 68 Mo. 22; State v. Bell, 158 Mo. 479; State v. Simpson, 67 Mo. 647; State v. Green, 19 Ark. 178; State v. McKenzie, 24 Ark. 636; State v. Goodson, 29 Fla. 511; State v. Westeott, 31 Fla. 458; Garden City Ins. Co. v. Stayart, 79 111. 259. (2) Is the indictment good in this case? It charges defendant with having forged a certain evidence of debt, commonly known as a deposit slip or deposit .ticket, on the Farmers’ Bank of Cameron, Missouri, and undertakes to set out in the indictment the alleged forged instrument in 'haec verba, without a single averment of any extrinsic matter which conld give the instrument alleged to have been forged any force or effect beyond what appears on its face. The deposit slip has no legal validity and affects no legal rights so as to injure another, which should appear from the indictment charging the offense, that such was its legal character, either by the instrument itself or by matter aliunde 'which will show it to be of that character. The indictment fails to comply with this rule. State v. Clark, 8 Ohio St. 630; Raymond v. People, 30 Pac. 510; sec. 2001, R. S. 1899. All the instruments mentioned in this section are made negotiable instruments by the laws of this State, and an instrument on which a suit could be brought. Laws 1905; p. 243. The statute only applies to negotiable instruments and other evidence of debt ejusdem generis. State y. Schuchman, 133 Mo. Ill; State v. Kruger, 134 Mo. 262. The term deposit slip or deposit ticket, as used in said indictment, is not such an evidence of debt as comes within the term “or other evidence of debt” as therein used; it is a g’eneral term, following specifically defined instruments of indebtedness, and can only be construed as including evidence of debt of a like class to those specifically defined. State v. Schuchman, supra; End., Int. Stat., sec. 400; State v. Williams, 2 Strob. 474; Ins. Co. v. Hamilton, L. R. 12 App. Cas. 484; Bank v. Bank, 102 Mo. App. 357; Weisinger v. Bank, 10 Lea. 330; Bank v. Clark, 134 N. Y. 368; Hotchkiss v. Mosher, 48 N. Y. 478; Mander v. Bank, 20 U. C. C. P. 125, 21 U. C. C. P. 493; Bolles, Mod. Law of Banking, pp. 466, 467; Talcott v. Bank, 53 Kan. 480; Lang v. Strauss, 107 Ind. 94. (3) There is a fatal variance between the deposit slip or deposit ticket described in the indictment and the deposit ticket or deposit slip proven in the testimony, both as to the date and signature. State v. Smith, 31 Mo. 120; State v. Wall, 39 Mo. 532; State v. English, 67 Mo. 136; State v. Owen, 73 Mo. 440'; State v. Chamberlain, 75 Mo. 382; State v. Jackson, .90 Mo. 156; State v. Chinn, 142 Mo. 507; State v. Kardowski, 142 Mo. 463; State v. Reed, 154 Mo. 122; State v. Weeks, 88 Mo. App. 263; State v. McNerny, 118 Mo. App. 60. The evidence in this case does not even tend to prove that the deposit slip, set out in the indictment, was signed at all, much less signed by some one as an officer of the bank. State v. Fay, 65 Mo. 490; State v. Stowe, 132 Mo. 199; State v. Imboden, 157 Mo. 83; State v. Harroun, 199' Mo. 519.

      Elliott W. Major, Attorney-General, and Chas. G. Revelle, Assistant Attorney-General, for the State.
    (1) Nothing but the record proper can be considered,' as defendant was duly sentenced and judgment pronounced before his motion for new trial was passed upon. Preliminary to the sentence he was asked in the presence of his counsel if he had any legal cause to show why judgment should not be pronounced. If he desired to have matters of exception reviewed, it was his duty to call the court’s attention to the fact that his motion for new trial was pending, and failing in this he must be held to have waived same. Sees. 2658, 2659, 2689’, R-. S. 1899; McComas v. State, 11 Mo. 79; Carrington v. Plancock, 23 Mo. App. 299; State v. Nagel, 136 Mo. 50; State v. Hall, 26 W. Va. 236. (2) The indictment charges with precision the elements and facts necessary to constitute the crime of forgery, and fully informs the defendant of the exact nature and cause of the accusation against him. State v. Yerger, 86 Mo. 37; State v. Paul, 203 Mo. 687; State v. Bell, 212 Mo. 129. (a) It is not necessary that the indictment charge an intent to defraud any particular person. It is sufficient if it charges generally.an intent to defraud. State v. Phillips, 78 Mo. 49. (b) There is no merit in defendant’s contention that a deposit slip or ticket issued by a bank to a depositor is not a subject of forgery. These slips are issued for the sole purpose of furnishing a depositor evidence of his claim and right, and the liability of the bank to him. They ¿re the most solemn and positive acknowledgments on the part of the bank of its receipt of the holder’s money, and of its indebtedness to him, and afford the best foundation of legal liability. If genuine, they alone would establish the bank’s indebtedness to the holder, and are of absolute legal efficacy. No instrument could be more prejudical to the rights of the bank than this. Forgery is the false making, or materially altering with intent to defraud, of any writing, which, if genuine, might be of legal efficacy, or the foundation of legal liability, or the evidence of another’s rights and claims. Any instrument which purports on its face to be good and valid for the purposes for which it was intended, and which may operate to the prejudice of the rights of another, is a subject of forgery. State v. Kattleman, 35 Mo. 107; State v. G-ullette, 121 Mo. 456; State v. Eads, 68 Mo. 150; State v. Tobie, 141 Mo. 559; State v. Sharpless, 212 Mo. 194; Shannon v. State, 109 Ind. 407; State v. Kimball, 50 Me. 409; Barnum v. State, 15 Ohio 717; Long v. Strauss, 107 Ind. 94. (c) The forgery of a receipt, or the fraudulent alteration of a date or amount thereof, with intent to prejudice the rights of another, or obtain thereby credit for money, is within the statute against forgery. State v. Kattleman, 35 Mo. 107; State v. Shelters, 51 Va. 102; State v. Riebe, 27 Minn. 315; Barnum v. State, 15 Ohio 717; Com. v. Brown, 147 Mass. 585. (3) Equally untenable is the contention of defendant that the proceedings should have been dismissed and defendant discharged' because the clerk had failed to endorse on the indictment the filing and the date thereof. A paper is filed when delivered to the proper officer and received by him to be kept on file, and it is not within the power of the clerk by his remissness to balk the action of the grand jury or defeat the purpose of a prosecution. The mere indorsement of the clerk is no constituent element of the filing, but is only an evidence, and not the sole one, of the filing. The record in this instance discloses that the indictment was returned in open court, and properly filed, and this is sufficient. Baker v. Henry, 63 Mo.-519; State v. Grate, 68 Mo. 25; State v. Hogan, 31 Mo. 342; State v. Vincent, 91 Mo. 665; State v. Clark, 18 Mo. 435; State v. Plummer, 55 Mo. App. 291. This motion, however, should not be reviewed by this court, as the record proper fails to show the filing of same, or the ruling of the court thereon. No good reason can be perceived why the rules governing motions for new trial, in arrest, and others of that ilk, should not be applicable to this. Stark v. Zender, 204 Mo. 449; Pennowfsky v. Coerver, 205 Mo. 137. (4) After having served timely notice, in writing, on defendant and his attorneys, to produce in court the deposit slip, or ticket, alleged to have been forged (the same being in defendant’s possession), there was no impropriety in State’s counsel requesting at the opening of the trial that said slip be then produced. This request being denied, it was proper and necessary to offer the notice theretofore given, together with the return thereon showing the service. This laid the foundation for the admission of secondary-evidence and was not prejudicial to defendant. State v. Barnett, 110 Mo. App. 592; State v. Sharpless, 212 Mo. 200. (5) In the case at bar by overruling the demurrer Which directly and specifically raised the question of alleged variance, and by giving and refusing the instructions it did, and by overruling the motion for new trial which again directly submitted this question to the trial court for decision, the court found and affirmatively declared that the alleged variance was not. material or prejudicial, and this court will defer to the action of the trial court on this finding. State v. Carrigan, 210 Mo. 371; State v. Barker, 64 Mo. 285; State v. Smith, 80 Mo. 520; State v. Harl, 137 Mo. 256; State v. Sharp, 106 Mo. 109; State v. Walters, 144 Mo. 347; State v. Wommack, 70 Mo. 411; State v. Sharp, 71 Mo. 221; State v. Ward, 74 Mo. 255; State v. Melson, 101 Mo. 482; State v. Dale, 141 Mo. 287; State v. Sharpless, 212 Mo. 202. Even in the absence of the statute above alluded to, the alleged variance would not he fatal. State v. Burlingham, 146 Mo. 225; State v. Jackson, 90 Mo. 158; State v. Flora, 109 Mo. 296; State v. Niesman, 101 Mo. App. 507; State v. Blanchard, 74 Iowa 626.
   FOX, J.

This cause is now pending before this court upon appeal on the part of Noah Jackson, the defendant, from a judgment of the Clay Circuit Court convicting him of forgery in the second degree.

On September 18, 1907, the grand jury of Clinton county returned in open court an indictment charging defendant with forgery in the second degree, it being alleged' that on May 1, 1907, he forged, counterfeited and falsely made a certain evidence of debt, commonly known as a deposit slip or ticket, on the Farmers’ Bank of Cameron, purporting to have been made and issued by said hank for the sum of $19,000. There were two counts in the indictment, both being identical, except as to the tenor of the forged instrument, one charging that the evidence of debt purported to he signed “C. E. Packard, Cashier, DeHart,” the other purporting to he signed “C. E. Packard, Cashier, D.”

On the second day of October, 1907, defendant filed an application for change of venue from Clinton county, charging bias and prejudice on the part of the inhabitants of that and all other counties in the Fifth Judicial district. Thereafter, said application and petition were considered and the change awarded to Clay county, and the cause ordered transferred and the transcript of all proceedings certified, which was aecordingly done. Thereafter, to-wit, February 25, 1908, defendant was duly arraigned and entered a plea of not guilty. June 8, 1908, defendant moved for bis discharge, alleging that neither the original indictment nor the transcript disclosed the indorsement of the clerk thereon, showing the filing of the indictment or the date of the filing. This motion was overruled, and defendant thereupon demurred to the indictment, and after the same was determined adversely to him the trial proceeded in due form.

Upon the trial of this cause the evidence developed upon the part of the State tended to prove that at all the times mentioned in the evidence, the Farmers’ Bank of Cameron was a banking institution, duly organized and incorporated, and doing business as such under and by virtue of the laws' of this State. C. I. Ford was president; N. S. Goodrich, vice-president; C. E. Packard, cashier; H. B. Cooper, assistant cashier; T. W. Parton, chief bookkeeper, and Louis- DeHart, assistant bookkeeper. For several years defendant had been doing business with this institution, at times depositing money therein and at other times borrowing therefrom, he being, at the date of the commission of his offense, indebted thereto in the sum of about $16,000.

On the 8th day of March, 1907, defendant went to the bank about the noon hour, and at that time Louis DeHart and Mr. Ford were present. Said DeHart was at that time acting as receiving teller, and was not acquainted with defendant. When defendant arrived at the bank he told DePIart that he wanted to deposit $100’. DeHart asked him to whose credit the deposit should be placed, to which defendant replied, “Noah Jackson.” DeHart thereupon inquired if he was Noah Jackson, to which defendant answered in the affirmative, whereupon he produced $100 in currency, and after the same had been counted and received by DeHart, he asked him for his pass or deposit book, and defendant said that he did not have the same with him. DeHart thereupon made out a deposit ticket, together with a duplicate thereof, and after signing said duplicate in the name of the cashier, he stamped under the name of Mr. Packard, “Cashier,” and to indicate who received the deposit attached either the letter “D” or name “DePIart,-” and delivered same to defendant. The deposit ticket so delivered to defendant was of the character commonly used hy banking institutions for that purpose, and stated in substance that defendant had deposited in the Farmers’ Bank of Cameron for his account, $100 in currency. Immediately following this defendant went to a trust company in Cameron and withdrew therefrom the sum of $5,000, which he had theretofore deposited, and in company with another party went to Kansas, where he deposited this money in a bank. About May 1st, defendant returned to Cameron, and a part of his indebtedness being then due, he was notified to make payment. He accordingly went to the bank and gave his note in settlement of that portion of his indebtedness then due. In a few days thereafter, to-wit, about May 1st, defendant again went to the bank and asked where all his money had gone, saying that on the 8th of March he had deposited $19,000, which was more than enough to discharge in full his indebtedness- to that institution. On being informed that he had made deposit of no such sum, but to the contrary had deposited but $100, he contended that he had deposited $19,000, and had the bank’s deposit slip or receipt disclosing that condition. He steadfastly contended that this amount was due him, and that DeHart had received $19,000 on March 8th, and had issued the deposit slip which he then and there presented. This ticket disclosed upon its face a deposit of $11,000 in currency and $8,000 in gold. Defendant, upon being asked where he had gotten this money, said that $5,000 of the amount had been received by him from the trust company. Hpon being asked from what source he had received the rest he said: “I will show it at the right time; you would not believe me if I would tell you. ’ ’ He again accused said DeHart of receiving the $19,000' and issuing the ticket in the form and for the amount disclosed by the ticket. Defendant passed1 the ticket around among various parties to convince them that this amount had been deposited by him. The ticket had been altered by prefixing a one and adding a cipher to the $100 in currency, making same read $11,000 instead of $100. The item of $8,000 in gold had been inserted immediately below the entry of $11,000. The evidence disclosed that these alterations were made after the delivery to defendant of the deposit ticket, and that the figures thereto added were not figures made by DeHart or other officers of the hank.

At the close of the evidence the defendant requested that the court give an instruction to the jury in the nature of a demurrer to the evidence, directing them that under the law and the evidence they would find tire defendant not guilty. This instruction was by the court refused, to which action and ruling of the court the defendant then and there at the time excepted. The court then gave instructions to the jury fully covering every phase of this case to which the testimony was applicable. It is unnecessary to here reproduce the instructions given and those refused. We will give them such attention as may be required during the course of .the opinion. The cause being submitted to the jury they returned a verdict finding the defendant guilty as charged in the second count of the indictment and assessed his punishment at a term of five years in the penitentiary. Timely motions for new trial and in arrest of judgment were filed by the defendant and by the court taken up and overruled. Sentence and judgment followed in accordance with the verdict. From this judgment the defendant prosecuted Ms appeal to tliis court and the record is now before ns for consideration.

OPINION.

The record in this cause presents numerous assignments of error as a basis for the reversal of this judgment. We will give the complaints made by the appellant, during the course of the opinion, such attention as their importance requires and merits.

Preliminary to the treatment of the assignments of error on the part of the appellant it is well that the suggestion of the learned Attorney-General, that nothing but the record proper can be considered, first be disposed of. The insistence upon this proposition is that the defendant was duly sentenced and judgment pronounced before his motion for a new trial was passed upon, and upon this state of the record it is insisted that when the defendant was asked, in the presence of his counsel, if he had any legal cause to show why judgment should not be pronounced, it was his duty to call the court’s attention to the fact that his motion for new trial was pending, and failing in this he must be held to have waived the same. The record in this cause discloses that after the return of the verdict finding the defendant guilty and before sentence and judgment was rendered, the defendant, within the time prescribed by statute, filed his motion for new trial. Subsequent to the filing of the motion for new trial and while it was pending, the court sentenced and entered judgment against the defendant, and afterwards formally overruled the motion for a new trial.

We have reached the conclusion that the insistence of the Attorney-General, under the provisions of the statute, cannot be maintained. The defendant filed his motion within the statutory period after the return of the verdict, and before the rendition of judgment; hence it follows, notwithstanding the court did not before sentence and judgment overrule the motion for new trial, yet the court must he presumed to have full knowledge of its records and to know that the motion for new trial had been filed and was then pending. The only logical conclusion that can he reached is that the sentence and judgment rendered against the defendant during the pendency of the motion for new trial was in effect an overruling of such motion. This being the effect of the sentence and judgment pending the motion for new trial, and then subsequently formally overruling such motion, we are of the opinion that the defendant has a right to a full hearing upon the errors assigned in his motion for new trial. Manifestly there was no necessity for the defendant, when the court propounded the question to him as to whether he had anything to say why he should not he sentenced, to state that his motion for new trial alleged the grounds and reasons why he should not he sentenced, for presumptively the court must he held to have had knowledge' of the fact that the motion for new trial had been filed and was pending, as well as the grounds alleged in it. • We repeat, that the rendering of the judgment against the defendant while the motion for new trial was pending was in effect a denial of such motion.

The disclosures of the record in this cause are unlike those presented in the cases of State v. Pritchett, 219 Mo. 696, and State v. Fraser, 220 Mo. 34. In those cases the records disclosed that after the return of the verdicts judgments were entered upon such verdicts, and subsequent to sentence and judgment defendants filed their motions for new trial. In other words, the motions for new trial were not filed until sentence and judgment had been entered against the defendants. Therefore it follows that those cases were controlled by the provisions of section 2689, Revised Statutes 1899, which expressly provides that the motion for new trial shall'be filed before judgment is rendered in the cause, and this provision of the statute was held, in the cases to which we have made reference, to be mandatory.

Directing our attention to the complaints of the appellant.

I.

It is insisted by learned counsel for appellant that the court committed error in overruling the motion for discharge of the defendant, on the ground that the court was without jurisdiction to try him on the indictment before the court. This motion, which it is insisted should have been sustained, was predicated upon the ground that the clerk had failed to indorse on the indictment the filing and the date thereof.

At the very threshold of the consideration of this motion we find that the record1 proper fails to disclose the filing of any such motion or any ruling of the court thereon. If the rules applicable to motions for new trial and in arrest of judgment are applicable to motions of this character, as announced in Stark v. Zehnder, 204 Mo. l. c. 449; Pennowfsky v. Coerver, 205 Mo. l. c. 137, and cases therein cited, then it would logically follow that this motion is not before us for review. While it is true the bill of exceptions preserves this motion and recites the action of the court upon it, and the exceptions of the defendant to such action, yet, as has repeatedly been held by this court, this is insufficient- to show that in fact the motion was filed. When we come to look to the filing of a motion which this court is called upon to review, we seek the record proper, and there ascertain if the motion was in fact filed, and as to whether or not the court took any action upon such motion. We have carefully analyzed this record, and unless we have overlooked some of the recitations in the record proper it absolutely fails to disclose that a motion of this character was filed, or that the court ever acted upon it.

But aside from all this, there is no merit in this motion. The record' in this cause discloses that on the 13th day of September, 1907, the sheriff of Clinton county, Missouri, returned into open court the writ commanding him to summon a grand jury, duly executed. Some of those served were excused and others summoned in their stead.. The record discloses that the grand jurors summoned as heretofore stated, appeared at the time and place as ordered by the court, and were duly impaneled, sworn and charged and instructed as the law requires. The court appointed W. A. White as foreman of said1 body and they were then ordered by the court to retire to their room to consider of their presentments and indictments. The record further discloses that on the 18th day of September, 1907, the same being the 9th day of the regular term of said court, the grand jurors appeared in open court, and by their foreman in the presence of his fellows, presented1 and made return of the indictment of the State of Missouri v. Noah Jackson, forgery, which said indictment, the record discloses, was by the court examined and found indorsed a true bill by the foreman and signed by the presecuting attorney, which said indictment was ordered filed by the court. Then follows in the record a copy of the indictment as returned by the grand jury into court, and is the indictment as is shown by the record in this cause upon which the defendant was tried and convicted.

In State v. Grate, 68 Mo. 22, this court, speaking through Judge Sherwood, first refers to the statute that indictments found and presentments made by grand juries shall be presented by their foreman, in their presence, to the court, and shall be filed and remain as records of such court. Discussing this statute it was said in that case that “it is out of the power of the clerk, by his remissness, to balk the action of the grand jury. The indictment became a record of the court when returned by the grand jury in accordance with the statutory provision above noted.” A similar rule was announced in State v. Clark, 18 Mo. 432. In the case last cited it was said that there was no necessity for spreading the indictment in full upon the records of the court at any time, and while it is said in that case that it was the duty of the court to have ordered the clerk to indorse the time of the filing of the indictment in court and this would have placed the whole matter right, yet it was expressly ruled that there was no ground for sustaining the defendant’s motion to dismiss the cause. The failure of the clerk to indorse on the indictment the filing and the date of the return of such indictment into court could not authorize the court to discharge the defendant. In Baker v. Henry, 63 Mo. 517, it was expressly ruled that in contemplation of law the presentation and delivery of the paper to the court or officer is the filing which dates from its receipt by the clerk and lodgment in his office.

When this indictment was returned into open court, presented to the court and deposited with the clerk, it was, in contemplation of law, filed. The indorsement by the clerk simply furnishes evidence of the filing. The entire record in this cause discloses that the indictment upon which the defendant was tried was the one returned into open court by the grand jury and presented to the court and deposited with the clerk by the foreman of the grand jury. This was fully recognized by the defendant himself. He executed a bond to answer the indictment returned into open court; he entered his plea of not guilty to this indictment; made application for a change of venue, and the transcript of the proceedings from the circuit court of Clinton county to that of Clay county shows clearly that it was the indictment as returned into open court hy the grand jury of Clinton county. While as heretofore indicated, the record presented in this cause is insufficient to authorize a review of the action of the court upon such motion, however, we are of the opinion that the motion as preserved in the bill of exceptions is without merit.

II.

This brings us to the consideration of the contention upon which counsel for appellant seem to chiefly rely for a reversal of this judgment, that is, that the deposit slip or deposit ticket issued by the Farmers’ Bank of Cameron, Missouri, designated in the indictment, is not the subject of forgery. To fully appreciate this proposition it is perhaps well to reproduce the challenge to the sufficiency of this indictment as contained in the brief of learned counsel for.appellant. Counsel make the inquiry: “Is the indictment good in this case?” Then assert, “It charges the defendant with having forged a certain evidence of debt, commonly known as a deposit slip ... or deposit ticket, on the Farmers’ Bank of Cameron, Missouri, and undertakes to set out in the indictment the alleged forged instrument in haec verba, without a single averment of any extrinsic matter, which could give the instrument alleged to -have been forged any force or effect beyond what appears on its face.. The deposit slip has no legal validity and affects no legal rights so as to injure another, which should appear from the indictment charging the offense, that such was its legal character, either by the instrument itself or by matter aliunde which will show it to be of that character. The indictment fails to comply with this rule. ’ ’ It is further insisted upon this proposition that a deposit slip or deposit ticket as alleged in the indictment, is not such an evidence of debt as comes within the term “or other evidence of debt” as nsed- in the statute defining this offense. This indictment is predicated upon the provisions of section 2001, which provides: “Every person who shall forge or counterfeit, or falsely make or alter, or cause to 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 o.r any cashier thereof, by any other person, company or corporation, shall, upon conviction, be adjudged guilty of forgery in the second degree.”

It will be observed that this section of the statute specifically designates certain instruments which are the subject of forgery, that is to say, promissory notes, bills of exchange, drafts, checks, certificates of deposit; then concludes, “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,” etc.

The contention of learned counsel for appellant is that the deposit slip or deposit ticket as alleged in the indictment, is not such an evidence of debt as is contemplated by the provisions of the section of the statute indicated, which would subject the persons forging, altering or counterfeiting such slips or tickets to the charge of forgery under the provisions of that section.

After a most careful consideration of all the authorities applicable to this proposition we are unable to give our assent to this insistence. Our- attention upon this proposition is directed by counsel for appellant to the cases of State v. Schuchmann, 133 Mo. 111; and State v. Krueger, 134 Mo. 262. In the Schuchmann case it was held that the term “other buildings” as used in the Revised Statutes of 1889, section 3526, making it burglary for any person to break and enter any shop, store, booth, tent, warehouse or other building, etc., means a building of like kind to those enumerated, and does not therefore embrace a chicken-house building. The same principle was announced in the Krueger case.

The deposit slip or ticket as alleged in the indictment is substantially an acknowledgment that so much money was deposited by the defendant to his credit in the Farmers’ Bank of Cameron. In the indictment it is charged that the Farmers’ Bank of Cameron issued this deposit slip or ticket and that it was an evidence of debt, and in our opinion it does not infringe upon the rule as announced in the cases to which our attention has been called. It may be that a chicken-house building is not of like kind to a shop, store, booth, tent or warehouse, but the statute now under discussion enumerates promissory notes, bills of exchange, checks, drafts and certificates of deposit, and in our opinion the deposit slip or ticket alleged in the indictment in this case is at least a like kind to a certificate of deposit designated in the statute. It will certainly not be contended that it must be identical with the kinds of evidences of debt as enumerated', for the Schuchmann case only requires that it shall be of like kind. A certificate of deposit and the deposit slip or ticket as alleged in the indictment are used for the same purpose — of indicating to the depositor to whom the slip is delivered that so much money is deposited in the bank that issues the paper. The certificate of deposit, it is true, is more formal, yet so far as indicating that the money of the depositor has been placed in the bank, it does not do it more effectively than the deposit slip alleged in the indictment, which is daily used by hundreds and thousands of banks in this country in the transaction of their business. That the deposit slip as alleged in the indictment, which, in .substance simply states that the defendant deposited so much money in the bank, is an evidence of debt, we think is too plain for discusr sion.

It certainly will not be seriously contended that in a dispute between the bank and a depositor as to the amount of a deposit, this deposit slip or ticket would not be of the most highly important evidence in settling a controversy between the depositor and the bank as to the amount of money deposited. The very purpose of the issuance by the bank of a deposit slip and its delivery to the depositor is to furnish evidence to him that he has deposited in the bank the amount of money designated in such deposit slip. While it may be true that this deposit slip is not a negotiable .instrument, yet its non-negotiability falls far short of in any way destroying or affecting the element of evidence of debt manifested upon the face of such deposit slip.

In the civil case of First National Bank v. Clark, 134 N. Y. 368, a case cited by appellant, Judge Parker fully recognized that a deposit slip is an evidence of debt. He says: “The use of a deposit slip is well understood. It constitutes an acknowledgment that the amount of money named therein has been received.” It is true that in the usual and ordinary course of banking these deposit slips are not used with the view of paying money upon the presentation of the slip to the bank, for it may be, as is said by Judge Parker in the ease last cited, that all or nearly all of the money may be checked out at the moment of making the deposit slip; but it is, as is held in that case, an evidence of debt; in other words, an acknowledgment that the amount of money named therein has been received. It may be conceded that a deposit slip would not furnish the basis of a cause of action similar to a promissory note, yet that fact would in no way affect the question as to whether or not it was an evidence of debt. But, as Judge Parker says, in a dispute between the bank and depositor as to the amount of deposit, it would become important as evidence. Take the facts as applicable to this proposition in the case at bar. If this defendant had instituted suit against the Farmers’ Bank of Cameron to recover $19,000 for money had and received, which appeared upon the face of this slip, is there any doubt but what upon the trial of that case, when the plaintiff offered in evidence this deposit slip, the signature of the cashier being acknowledged as genuine, that would not make out a prima-facie case of indebtedness on the part of the bank to the plaintiff? There can be none. The deposit slip would clearly be. admissible in evidence, and in fact in the absence of any showing to the contrary that the money was had and received or had not been drawn out on checks or otherwise, it would authorize a recovery for the $19,000; hence it logically follows that it is an evidence of debt. If it was not and was a mere worthless piece of paper it would be inadmissible in evidence.

In Hotchkiss v. Mosher, 48 N. Y. 478, it was held that the certificate was an acknowledgment of so much money deposited with the bank. “It was of the same force and effect as a receipt for money,” and it was said in that case that “a simple certificate like the one in question is not the basis of an action like a promise in writing, but would be evidence, like a receipt, to raise an implied promise to pay in an action for money had and received.” Manifestly that case treated the certificate as an evidence of debt, otherwise it would not have been admissible in evidence.

Our attention is also directed by counsel for appellant to the case of Bank v. Bank of Kansas City, 102 Mo. App. 357. Manifestly that case furnishes no support to the contention that a deposit slip does not constitute any evidence of debt. On the contrary, when the case is fully read, it indicates very clearly that the court construes a duplicate deposit slip which is always handed to the depositor, as an evidence of the transaction. In other words, as evidence of the amount of money deposited in the bank. In discussing that case Judge Ellison said: “The ‘deposit slip’ made out at the time by the cashier in Shinn’s presence said nothing of the deposit being for any purpose. Such slip or ticket is said to be ‘a note to help the memory.’ [Morse on Banking, sec. 290.] The cashier stated that he gave Shinn a duplicate. Shinn does not deny this. It must in reason be true, for the deposit was not put on a pass book and it seems out of accord with business principles that Shinn would have left the bank without taking with him any evidence of the transaction.” Clearly that court fully recognized the usual methods in. transacting business with banks, as well as the force and effect of a duplicate slip which is given to the depositor; and the court upon the facts developed at the trial reached the conclusion that the bank must have given Shinn a duplicate deposit slip, for it was said that this deposit was not put on a pass book, and it would be out of accord with business principles for Shinn to have left the bank without taking with him any evidence of the transaction. This case, as well as numerous other cases, clearly indicates that when it is said that a deposit slip or deposit ticket is said to be a note to help the memory, reference is made to the deposit slip or ticket retained by the bank; but the duplicate deposit slip which is handed to the depositor is issued to him as an evidence of the amount of his deposit; and while it is true that in a contest between the depositor and the bank for money had and received this slip would not be conclusive evidence of the liability of the bank and would be susceptible of explanation that the amount of the deposit as evidenced by such deposit slip had been drawn out of the bank by check or otherwise, but this by no means changes the nature and character of such duplicate deposit slip or lessens its force and effect as an acknowledgment that so much money has been deposited in the bank by the depositor.

Our attention is also directed to the case of Weisinger v. Bank, 10 Lea (Tenn.) 330. An examination of that case demonstrates very clearly that it has no application to the facts in the case at bar. There the son of the party making the deposit signed a deposit slip to be deposited with the bank. The bank did not undertake to issue any certificate or duplicate deposit slip to the depositor; hence it was ruled in that case that the deposit slip as signed by the young man making the deposit for his father was merely a memorandum to guide the bank in making the entries in the book. In other words, a note to help the memory. The facts in that case are widely different from the case at bar, where the bank issued a duplicate deposit slip, not for the purpose of helping the memory of the cashier of the bank in making entries, for this duplicate deposit slip passes out of the hands of the bank and is issued to the depositor, and is issued but for one purpose, that is, to furnish to the depositor evidence of the amount of money he has deposited with the bank, and . unless such money deposited is drawn out by the depositor by check or otherwise, the depositor is entitled to recover such money.in an action for money had and received, upon the introduction of his deposit slip, which prima-facie shows that he has that amount of money deposited in said bank.

In Long, Executrix, v. Straus, 107 Ind. 94, it was expressly, ruled that an action might be maintained upon a receipt in this form: “Received of Joseph S. Long sixteen hundred dollars, on deposit, in National currency,” signed, “Straus Bros.” In the discussion of the propositions involved in that case the court very clearly said that “the deposit of money is a transaction well known to the law, and it is one out of which well defined legal rights emerge; chief among these rights is that of the depositor to receive his own again, and a correlative of this right is the implied promise of the person who receives money on deposit to return it to the depositor. ... It would shock everyone’s sense of justice to affirm that a depositor could not get back his money unless there is an express promise to return it to him, but this cannot be affirmed without doing violence to the settled principles of jurisprudence.” Again, it is said by the Court of Appeals of New York, that “money on deposit means, ex vi termini, money placed where the owner can command it at any time.” [Curtis v. Leavitt, 15 N. Y. 9, 265.]

We stop here to inquire, if the deposit slip or ticket as alleged in the indictment, was. not issued and delivered to the defendant for the purpose of furnishing him evidence as to how much money the bank owed him by reason of such deposit, then what was the necessity of issuing it at all? Unless these deposit slips which are in such common use by all the banks over the country are issued for the purpose of furnishing evidence of the indebtedness of the bank by reason of such deposit slips, then clearly they should be treated as mere worthless paper. If the deposit slip or ticket as alleged in the indictment is not to be construed as an evidence of debt, and it is to be held that depositors indiscriminately may make a deposit of $50 in a bank, add a cipher to it and make it $500, or make a deposit of $500, add a cipher and make it $5,000, with the privilege of entering the courts of the country contesting for the recovery of the amount in the altered instrument with the bank for money had and received, without subjecting themselves to a criminal prosecution, then we confess that the banks doing business in this State would have very little or no protection against the perpetration of such frauds, and would be compelled to cease the . long established method of doing business by the issuance of deposit slips to depositors. To so hold would be but an invitation to the criminal classes of our population to unjustly seek the money and property of the business institutions of the country, as well as a humiliation .to the lawmaking power of this great commonwealth in failing to provide the administering of proper punishment for the perpetration of frauds of this character.

Giving attention to the other complaint challenging the validity of the indictment in this cause, that is, that “the deposit slip has no legal validity and affects no legal rights so as to injure another,” what was said in State v. Sharpless, 212 Mo. l. c. 194 and 195, is applicable to this subject, namely: “It is fundamental that one of the essential elements of this crime is the intent to defraud, and it is only essential that the instrument to be the subject of forgery should be of some apparent legal efficacy for injury to another. On the other hand, instruments which upon their face are utterly valueless and have no binding force or effect for any purpose of harm,, liability to injury to anyone, cannot be the subject of forgery. This rule is fully recognized both at common law and in the highest courts of the several States of the Union. [State v. Cordray, 200 Mo. 29; Colson v. Com., 110 Ky. 233; King v. State, 43 Fla. l. c. 218, 219; 19 Cyc. Law and Proc., 1370; and cases cited in note 94.] ”

In People v. Tomlinson, 35 Cal. 503, the object and purposes of the statute against forgeries were very clearly and tersely stated. It was said: “The purpose of the statute against forgeries is to protect society against fabrication, falsification, and the uttering, publishing and passing of forged instruments, which, if genuine, would establish or defeat some claim, impose some duty, or create some liability, or work some prejudice in law to another in his rights of person or property. Hence, without much conflict, if any, it has been held from the outset that the indictment must show that the instrument in question can be made available in law to work the intended fraud or injury.”

Applying the rules of law as indicated in the cases last cited, we are of the opinion that the charge in the indictment in the case at bar fully meets all the requirements of the rules announced in those cases. "We have heretofore fully discussed the nature and character of the deposit slip as well as its force and effect. The indictment charges that this deposit slip was an evidence of debt, and the deposit slip was embraced in the indictment and shows upon its face its legal efficacy, and clearly furnishes evidence of the rights and claims of the depositor to whom such duplicate slip was issued. This deposit slip manifestly purports upon its face to be good and valid for the purposes for which it was intended and which might operate to the prejudice of the rights of another; hence there was no necessity for any allegation in the indictment of any extrinsic matter to give the instrument alleged to have been forged any force and effect beyond what appears on its face. The instrument speaks for itself, and clearly shows that it is such an instrument as is susceptible of affecting legal rights so as to injure another; hence it follows that upon this complaint the ruling must be adverse to the appellant.

It is not out of place to direct attention to some of the cases in this State as indicative of the views of this court upon the subject of the offense of forgery. While in the case of State v. Gullette, 121 Mo. 447, the offense of forgery charged was under a different provision of the statute, yet the views of the court as expressed in that case indicate very clearly that this court is not disposed to “quibble” about the name of the instrument charged to have been forged. It was there said: “It was unnecessary that the order in question, if genuine, should have been addressed to any person by name. This ruling has passed into precedent. [People v. Krummer, 4 Park. Crim. 217.] Nor was it necessary that the instrument employed with intent to defraud should be entitled in strictness to bear the title or appellation of a bill of exchange or of a promissory note. There need be no formality about it, nor need it be designated by any certain name. 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, etc., if made with intent to defraud is amply sufficient to come within the penal prohibitions of the statute. ‘The question is whether, upon its face, it [the writing] will have the effect to defraud those who may act upon it as genuine, or the person in whose name it is forged.’ . . . And it does not lie in the mouth of the forger to claim immunity for his crime because, if the man he imposed upon had been vigilant, he would not have been deceived!”

In the case of State v. Eades, 68 Mo. 150, the forgery charged was that defendant forged a certificate of indebtedness of the City of Kansas. It was insisted in that case as in the case at bar that the instrument set out in the indictment was not such as can be the subject of forgery, because the charter of the City of Kansas does not confer on the Mayor and Common Council the power to issue the same. In treating, of that proposition this court, speaking through Judge Norton, said: “Upon a statute of New York, similar to our own, which came before the court for construction in the case of People v. Krummer, 4 Park, Crim. 217, it was held that ‘we are never called upon to determine whether in legal construcstruction the false instrument or writing is an. instrument of a particular name or character. It is a matter of perfect indifference whether it possesses or not the legal requisites of a bill of exchange, or an order for the payment of money or the delivery of property. The question is whether, on its face, it will have the effect to defraud those who may act on it as genuine, or the person whose name is forged. It is not essential that the person, in whose name it purports to be made, should have the legal capacity to make it, nor that the person to whom it is directed be bound to act upon it, as genuine, or have a remedy over. Though all the parties to a bill of exchange are purely fictitious, if it be passed as genuine, it is regarded by the law as forgery. The law looks only to the falsity of the instrument and the fraudulent use of it as genuine.’ ”

Also in the case of State v. Kattlemann, 35 Mo. 105, it was expressly ruled by this court that “altering the date of a receipt from the 11th of April to the 1st of April, if done fraudulently, that is, if done to prejudice the rights of another, and the more easily or successfully to enable the party altering it to obtain a double credit for money paid', is a material alteration, and sufficient to constitute the offense of forgery.”

Now, we repeat, that while the cases last cited were predicated upon provisions of the statute unlike the one in the case at bar, yet applying the reasoning in those cases to the character of the instrument in the case now before us, it may well be said that if the instrument as set out in the indictment is an evidence of debt, it is a matter of little concern as to what you call that instrument — whether a certificate of deposit, a deposit slip or a deposit ticket; the question is as to whether or not such instrument purports on its face to be good and valid for the purposes for which it was intended and which may operate to the prejudice of the rights of another.

That the deposit slip oí ticket as alleged in the indictment is an evidence of debt as contemplated by the provisions of the statute upon which this indictment is predicated, and is the subject of forgery, we have no doubt. In our opinion the provisions of this statute are broad enough to embrace every character of paper issued by the banks designated in the statute which furnish evidence to those persons dealing with the banks of the amount of any indebtedness due them. We are unwilling to say that the deposit slip or ticket alleged in 'the indictment, the issuance of which by the bank was but following one of the most common and usual methods of transacting business by the bank “with depositors, is not, in contemplation of that statute, evidence of debt. The ruling upon this proposition must be adverse to the contention of the learned counsel for appellant.

III.

It is next insisted that there is a fatal variance between the deposit slip or deposit ticket alleged in the indictment and the evidence offered in proof thereof by the State. It -is sufficient to say that the law applicable to this proposition is well settled. Section 2534, Revised Statutes 1899', provides that “whenever . . . there shall appear to be any variance between the statement in the indictment or information and the evidence offered in proof thereof ... in the name or description of any matter or thing whatsoever therein named or described, . . . such variance shall not be deemed' grounds for an acquittal of the defendant, unless the court before which the trial shall he had shall find that such variance is material to the merits of the case and prejudicial to the defense of the defendant.”

In State v. Carragin, 210 Mo. 351, it was insisted that there was a fatal variance between the instrument described in the information and the note offered' in evidence. The information in that case did not allege and set out in its description of the forged instrument the indorsement of the defendant Carragin thereon, but the note offered in evidence had the indorsement of the defendant, the maker of the note, on it. It was expressly ruled in that case that the circuit court failing to find that there was any material variance, hence the omission in the information of the genuine indorsement of the defendant furnished no ground for the reversal of the judgment. It was also held in that case that the mere omission of the genuine indorsement of the defendant on the note did not constitute reversible error.

Numerous other cases by this court have made similar rulings, and in the comparatively recent case of State v. Sharpless, 212 Mo. l. c. 202, the rule as announced in the case of State v. Carragin, supra, was unqualifiedly approved.

IV.

This brings us to the consideration of the insistence on the part of counsel for appellant that the testimony as developed upon the trial of this case did not tend to prove that the deposit slip set out in the indictment was signed at all by any officer of the bank. We shall not undertake to reproduce all of the testimony applicable to this proposition, but it is sufficient to say that we have read in detail the evidence of the witnesses testifying as to the deposit slip and signatures as alleged in the indictment, and in our opinion the testimony very clearly tended to prove that the deposit slip alleged in the indictment, and which was presented by the defendant as genuine, was signed by the cashier, Packard, with the addition “DeHart” or “D,” one of the two. Mr. Ford, the president of the bank, in testifying as to what DeHart did, substantially stated that a deposit slip of $100 was made out which recited: “Farmers’ Bank of Cameron. Noah Jackson has deposited $100, and DeHart signed ‘C. E. Packard, Cashier,’ by ‘DeHart’ or ‘D,’ one of the two, and placed it on file and he made a duplicate of the same and stamped it with a rubber stamp, ‘Duplicate,’ and handed it to Mr. Jackson and he took it and went on.” Mr. DeHart testified to Jackson coming to the bank and presenting this duplicate slip. On cross-examination he said that of course it looked like his handwriting; he admitted that it was his handwriting. Then he fully testified in detail to the changes and alterations in that duplicate slip. Finally, in testifying about this slip, in answer to the question,.“'What is your best judgment now, or have you any judgment, as to whether that was the slip you wrote .out and handed to him, or the one wrote by some one else?” he answered, “Why, my best judgment was that it was the one I handed him.” The inquiry was further made by questions propounded: “That is your best judgment? A. Yes, sir. Q. And it was in your'handwriting? A. Yes, sir.” N. S. Goodrich testified that when Jackson presented the altered slip DeHart, in conversation with Jackson, stated the following: “Well, DeHart said he made out that ticket for $100 and no more. ’ ’ DeHart was then talking to Jackson about the altered slip that he brought to the bank. This -is a sufficient reference to the testimony the witnesses. That the testimony as indicated clearly shows that the slip as presented to the bank by the defendant and as alleged in the indictment, was signed “C. E. Packard, Cashier, DeHart or D,” is, in our opinion, too plain for discussion.

Y.

This leads us to the consideration of the instructions given by the court. We have carefully analyzed such instructions and find that they fully covered every phase of this case to which the testimony was applicable. They required the jury to find every essential element necessary to constitute the offense with which the defendant was charged. The court by instruction numbered 3 fully informed the jury that the defendant was presumed to be innocent, and that it devolved upon the State to prove his guilt beyond a reasonable doubt, and unless the State established his guilt, as charged in the indictmnet, to their satisfaction beyond a reasonable doubt, they should give the defendant the benefit of such doubt and return a verdict of not guilty. In addition to this instruction the court, upon behalf of the defendant, repeated this information to the jury, and emphasized it by saying that it was not enough in a criminal case to justify a verdict of guilty that there may be a strong suspicion or even a strong probability of the guilt of defendant, but the law requires proof so clear and satisfactory as to leave no reasonable doubt of defendant’s guilt.

Complaint is particularly made of instruction numbered 4. This instruction was as follows: “The jury are instructed that it is not necessary to prove that defendant is guilty by the testimony of witnesses who may have seen the offense committed. His guilt may be shown by proof of facts and circumstances from which it may be reasonably and satisfactorily inferred.” While perhaps it may be said that it would have been more appropriate to have followed approved precedents respecting instructions upon this subject, yet manifestly there was no reversible error in the giving of that instruction, particularly so when taken in connection with the clear instructions of the court as to the nature and character of the proof necessary to warrant a conviction in the cause.

Complaint is made by the defendant upon the action of the court in refusing instructions requested by the defendant, marked A, B, C, D and E. We deem it unnecessary to reproduce those instructions. They have been, carefully analyzed and considered. In our opinion they are fully covered by the instructions given by the court at the request of counsel for the State and those given at the request of the defendant. We repeat, the instructions as given fully covered every subject connected with the offense charged to which the testimony was applicable. There was no such substantial error in the giving or refusing of instructions as was sufficient to authorize this court in reversing this judgment.

71.

We have fully indicated our views upon the controlling legal propositions disclosed by the record. The testimony developed upon the trial is fully indicated in the statement of this cause. It was fully sufficient to support the verdict as returned by the jury. The defendant, at the close of the State’s evidence, declined to introduce any evidence whatever; he was content with relying upon the insufficiency of the State’s showing made upon the trial. There was no effort on the part of the defendant to introduce '.any witnesses whose testimony would in any way tend to support the claim that $11,000 in currency and $8,000 in gold, as indicated by the deposit slip, had been deposited in the Cameron Bank. The evidence as introduced by the State clearly furnished such a substantial showing as authorized a submission of the cause to the jury, and while as provided by statute, no improper inference should be drawn as to the guilt of the defendant by reason of his failure to testify, but it is significant tbat if a deposit was made of $11,000' in currency and $8,000' in g’old, there was not some one other tban the defendant who could give some explanation as to the possession of this amount of money by the defendant at that time, and as to where or from whom such money was obtained; however, it is unnecessary to discuss that phase of the case. As heretofore stated, the testimony as introduced by the State fully supports the verdict; in fact, we are unable to comprehend how the jury could have reached any other conclusion under the facts as developed in this cause.

Finding no reversible error, the judgment of the trial court should be affirmed, and it is so ordered.

All concur.


source: Caselaw Access Project

author: BURGESS, J.

license: Public Domain

text:
    THE STATE v. J. L. WALKER, Appellant.
    Division Two,
    June 8, 1909.
    1. LOCAL OPTION LAW: Indictment Prior to Adoption. An adoption of the Local Option Law hy the people of a county,, prohibiting the sale of intoxicating liquors therein, does not prevent the trial and conviction of a dramshop-keeper who prior thereto was indicted for selling liquors to a minor without the written consent of parents.
    2. -: Adoption: Repeal of Dramshop Law. The Dramshop Law, though it remains in force to regulate existing licenses, is repealed by the adoption by the people of t.he Local Option Law in the sense to bring into operation the saving clause of section 2392, Revised Statutes 1899, permitting indictments and informations theretofore found for- infractions of the Dramshop Law, to he prosecuted and the delinquents to be; punished. [Disapproving and overruling, State v. Patrick and Boyd, 65 Mo. App. 653.]
    3. INDICTMENT: Signed by Prosecuting Attorney. An indictment signed by “J. L. Bess, prosecuting attorney,” is sufficiently signed. It was not necessary that the name of the county be appended to his signature.

      4. DRAMSHOP-KEEPER: Evidence: License. In the trial of a defendant as a dramshop-keeper for selling liquor to a minor without the written consent of his parents, an objection that his license as a dramshop-keeper was not introduced in evidence is unavailing, where he was in possession of the license, was notified to produce it but refused, whereupon secondary evidence was introduced sufficient to show he was a dram-shop-keeper. Besides, it is questionable if it was essential to prove he was a dramshop-keeper.
    Transferred from St. Louis Court of Appeals.
    Affirmed.

      Elliott W. Major, Attorney-General, and Chas. G. Revelle, Assistant Attorney-General, for the State.
    (1) (a) The statute fully individuates the offense and an indictment substantially following its language is sufficient. R. S. 1899, sec. 2179; Laws 1905, sec. 300-9, p. 141; State v. Heibel, 116 Mo. App. 43; State v. Harroun, 199 Mo. 525. (b) In his motion in arrest defendant complains that the information was not signed as J. L. Bess, prosecuting attorney “of Howell county,” but simply as J. L. Bess, “prosecuting attorney.” It is not essential that he should add to his signature the county and State of which he was the prosecuting attorney, as the court will take judicial notice of its officers. State v. Campbell, 210' Mo. 214; State v. Gibson, 114 Mo. App. 653. (2) (a) Defendant also assigns as error the admission of the county court ’ records to prove that he was a licensed dram-shop-keeper. The record discloses that defendant was notified and requested to produce his license, but refused to do so, suggesting at the time that the State make its own case if it had one. Under .these circumstances the only possible available evidence was secondary, and it was properly admitted. State v. Barnett, 110 Mo. App. 592. (b) Defendant, however, is in no position to complain at the admission of this evidence, as he made no objections to same. City of DeSoto v. Brown, 44 Mo. App. 153; State v. McAffee, 148 Mo. 370; State v. Dnsenberry, 112 Mo. 277.' (c) • After silently sitting by and permitting, without objections, the admission of the court’s order granting the license, he later objected to the introduction of the bond, assigning as reasons therefor that it was incompetent, irrelevant and immaterial. That it is no objection and preserves no ruling, is well settled law. State v. Crone, 209 Mo. 330; State v. Page, 212 Mo. 237; State v. Goforth, 136 Mo. 116; State v. Harlin, 130 Mo. 395; State v. Harris, 199 Mo. 723. (d) It was not necessary for the State to prove that he was a dramshop-keeper. The indictment included within its allegations not only an offense under Sec. 3009, p. 141, Laws 1905, but also under Sec. 2179, R. S. 1899, which section is leveled against any person furnishing intoxicating liquor to a minor. It is a general rule of criminal procedure that if one is indicted under one section of the statute and the evidence shows that he is not guilty of a violation of that section, but is guilty of the violation of another section, he may be convicted under the section of which the evidence shows him guilty, provided the indictment is broad, enough to include the offense within its allegations. State v. Quinn, 170 Mo. 182; State v. Heckler, 81 Mo. 417. (3) (a) The sole serious question presented by this record is defendant’s contention that the dram-shop law, which was in force at the time of his offense and indictment and under which he was indicted, was not in effect at the time of this trial and conviction, but had' been suspended in the meantime by the adoption of the local option law. Sec. 2392, R. S. 1899', provides that no offense committed ... or prosecution commenced or pending previous to or at the time when any statutory provision shall be repealed or amended, shall be affected by snch repeal or amendment, bnt that the trial and punishment of all such offenses . . . shall be had in all respects as if the provision had not been repealed or amended. Recognizing the force of this saving section and inclining towards the niceties of distinction, defendant contends that the adoption of the local option law does not repeal, but merely suspends the dramshop law. It occurs to us that it is wholly immaterial whether the effect of the adoption of the local option law is to repeal or merely suspend the operation of this law, as in either event the status of defendant is unchanged. If its effect is tantamount to the repeal of the statute by legislative act, as has been held in the following cases: Whisenhunt v. State, 18 Tex. App. 493; Monroe v. State, 8 Tex. App. 344; Dawson v. State, 28 Tex. App. 6761; State v. Binder, 38 Mo. 456, then, under the saving statute above alluded to, the prosecution can be maintained. State v. Ross, 49 Mo. 416; State v. Proctor, 901 Mo. 334. (b) If, on the other hand, as defendant contends, its force is merely to suspend the operation of the dramshop law, the suspension does not operate to preclude a prosecution commenced prior to the suspension, as has been expressly held. Winterton v. State, 651 Miss. 241; People v. Wade, 101 Mich. 92; State v. County Court, 53 Mo. 128.
   BURGESS, J.

In an opinion in the St. Louis Court of Appeals, the judgment of the circuit court in this case was affirmed, and upon motion by the defendant for a rehearing, the motion was overruled and the cause certified to the Supreme Court for final disposition, upon the ground that the decision of the St. Louis Court of Appeals was in conflict with the opinion of the Kansas City Court of Appeals in State of Missouri v. Patrick & Boyd, 65 Mo. App. 653, in which tiiere was a divided court. We have carefully read both opinions, and approve and adopt the opinion of the St. Lonis Court of Appeals as being in harmony with our view as to the law of the case, and as the opinion of this court. It reads as follows:

“Defendant was indicted by the grand jury of Howell county, February 14, 1907, for disposing of' liquors unlawfully to a minor without the written permission of the parent or guardian of said minor. Appellant was a dramshop-keeper and was indicted as'such;-but before the trial, to-wit, January 31, 1907, an' election was held in Howell county to determine: whether the sale of liquors in said county should be prohibited under the Local Option Law, and as the vote was in favor of prohibition, the statute against the sale of liquors in the county went into effect March 16, 1907. This case was not called for trial until April 4, 1907, and after the adoption of prohibition for the county. The appellant admitted the sale of liquors as charged in the indictment, and submitted the case on the contention that he ought not to be convicted as the law under which he was indicted and tried was suspended by the adoption of prohibition in Howell county. Other objections to the conviction are raised chiefly against the indictment. Appellant’s position that the occurrence of the local option election prior to the trial sufficed to prevent a conviction, because the dramshop act under which defendant was tried was not in force in the county at the time of the trial, might be well taken, but for the provision of section 2392 of the Revised Statutes of 1899: This section says no offense committed and no fine, penalty or forfeiture, or prosecution commenced or pending previous to or at the time when any statutory provision shall be repealed or amended, shall be affected by such repeal or amendment, but the trial and punishment of all such offences, and the recovery of such fines, penalties or forfeitures, shall be had as if it had not been repealed or amended. There is a further provision in the clause that if the punishment or penalty for any offense is reduced or lessened after commission of the offense and before the trial of the offender, by alteration of the law creating the offense, such penalty or punishment shall be assessed according to the amended' law. Such a general statute has been held to save indictments drawn on a statute which is afterwards repealed. [Mullinix v. People, 76 Ill. 211.] Appellant says the saving section of the statute does not apply to his ease, because the local option election did not operate to repeal the Dramshop Law in Howell county, but simply suspended it until the voters of the county shall, at a future election, reject the law prohibiting the sale of intoxicants in the county. The outside current of decision seems to support the view that the local option election operated as a repeal of the Dramshop Law of the county for the time being; that is to say, it was repealed but might again be put in force by a vote of the citizens. That a vote adopting or rescinding the Local Option Law is tantamount to a legislative repeal of the law previously in force was directly decided in Monroe v. State, 8 Tex. Crim. App. 343; also Halfin v. State, 5 Tex. Crim. App. 212; and see Black, Intox. Liq., sec. 106, and cases cited in note 77. These statutes regarding the sale of intoxicating liquors, though criminal offences are created by some of them, ought to be construed so as to carry out their true purpose. A vote under the Local Option statute prohibiting the sale of intoxicating liquors in a county, cannot be held to repeal instantly all provisions of the Dramshop Law without leading to mischievous consequences. The Local Option statutes continue those dramshop licenses which are in force when the election occurs until they expire by limitation of time. Such licenses might run for six months, and to say the Dramshop Law is entirely repealed would amount to saying liquors might be sold to minors, or in some other unlawful way, by parties holding licenses until these expired. Yet we think the Dramshop Law, though it remains in force to regulate existing licenses, is repealed by the adoption of prohibition at an election held under the Local Option statute; that is, repealed in such sense as 'to bring into operation the saving clause of section 2392 permitting indictments and informations theretofore found for infractions of the Dramshop Law, to be prosecuted and the delinquents punished. In State v. Patrick & Boyd, 65 Mo. App. 653, the majority of- the Kansas City Court of Appeals reached a different conclusion on an analogous question; that is to say, whether or not a vote by a county which had previously voted against the sale of intoxicants, to permit their sale, amounted to a repeal of the Local Option statute so that an indictment previously found for an infraction of them could not be prosecuted. It was held the second election did not repeal the statute against the sale of intoxicating liquors in the county within the meaning of section 2392; bqt merely suspended such statutes until another election. According to this reasoning neither the Local Option statutes nor the Dram-shop Law would ever be repealed in any county, but would stand in successive abeyances awaiting alternate changes of public sentiment. This view is highly technical and impractical, and was dissented from by Judge Ellison in an opinion which we think is sound. He held that a proper construction of the law is that when the Local Option statutes are rejected in any county where they have been adopted, this amounts to repealing them within the force of section 2392 and brings indictments previously returned for violating the Local Option statutes within the saving provisions of said section. Judge Ellison’s opinion seems to accord with the decision of the Supreme Court in State v. Binder, 38 Mo. 451. That defendant was convicted under an indictment for keeping open an ale and porter house (fermented liquors) on Sunday in the city of Sf Louis, in violation of a statute contained in the Revision of 1855: Another statute gave a majority of the legal voters of the city power to grant permission for the opening of an establishment for the sale of refreshments of all sorts except distilled liquors, on any day of the week. An election had been held, with the result that the right to open establishments on any day of the week for the sale of refreshments, except distilled liquors, was voted. It was ruled the election held under the statute of the State, though it did not purport directly to repeal the statute against selling fermented liquors on Sunday, was tantamount to a, repeal of the prior statute and superseded it. We think if the Dramshop Law is so far repealed by an election held under the Local Option statutes as to render the provisions of the former law no longer in force in the county, it is sufficiently repealed to bring .into play section 2392 and permit convictions under indictments for offences committed prior to the local option election.

“It is objected that the indictment was not signed by the prosecuting attorney with the name of his county appended to his signature. The indictment was signed by J. L. Bess as prosecuting attorney, and this was sufficient. [State v. Gilson, 114 Mo. App. 652.]

“It is further objected that the license of defendant as a dramshop-keeper was not introduced in evidence. Defendant was in possession of his license and was notified to produce it but refused to do so; whereupon secondary evidence was given; which was, we think, sufficient proof he was a dramshop-keeper. [State v. Barnett, 110 Mo. App. 592; Id., 111 Mo. App. 558.] It is questionable if it was essential to prove he was a dramshop-keeper. He could be convicted under another statute. [State v. Quinn, 170 Mo. 176.] The judgment is affirmed.

“We deem the conclusion we have reached to be in conflict with the decision of the Kansas City Court of Appeals in State v. Patrick & Boyd, 65 Mo. App. 653, and therefore this case is certified to the Supreme Court for its determination. All concur.”

The case of State v. Patrick &. Boyd, supra, is overruled.

All concur.


author: FOX, J.

text:
    THE STATE v. JOSEPH F. GEORGE, Jr., Appellant.
    Division Two,
    June 8, 1909.
    1. APPEAL: No Motion for a New Trial. Where the record in a criminal case does not show that a motion for a new trial was filed or that such motion was overruled or that any hill of exceptions was filed, nothing can be considered on appeal but the record proper.
    2. -: -: Matters of Record and Exception. The record proper should show that a motion for a new trial was filed and that the same was either overruled or sustained. The bill of exceptions should contain said motion, the ruling of the court thereon, and the exception taken to such ruling. Likewise the record proper should show that the bill of exceptions was filed and within time; otherwise, it does not become a part of the record.
    3. INFORMATION: Carnal Knowledge. The information in this case, charging carnal knowledge of a female child under fourteen years of age, is set out in full, and, Held, to be based upon the statute, and to be in all respects sufficient.
    Appeal from Camden Circuit Court. — lion. A. W. Lincoln, Special Judge.
    Affirmed.

      Elliott W. Major, Attorney-General, and Chas. G. Revelle, Assistant Attorney-General, for the State.
    (1) There is nothing in the record to identify the so-called hill of exceptions, and the matters which pertain to the record proper and those which should only he embraced in the bill of exceptions preserving the .exceptions to the action of the court during the progress of the trial are so confounded that it is impossible to tell where the bill of exceptions begins or end's. There are no record entries showing the filing of a motion for a new trial, or the overruling of such a motion, or the filing of a bill of exceptions, or such other matters as are required to appear on the face of the record proper. A bill of exceptions standing alone cannot prove its own validity, and statements therein of facts that must appear in the record proper are not sufficient. There is nothing in this case for the consideration of the court but the record proper. Stark v. Zehnder, 204 Mo. 448; Clay v. Pub. Co., 204 Mo. 672; Bowers v. Daniel, 198 Mo. 317; Hill v. Butler Co., 195 Mo. 374; State v. Baty, 166 Mo. 561; Reno v. Fitz Jarrell, 163 Mo. 411; Ricketts v. Hart, 150 Mo. 64. (2) "Where no bill of exceptions is filed and the record proper is free from error, as in this case, the judgment will be affirmed. State v. Miller, 209 Mo. 389; State v. Jackson, 209 Mo. 397; State v. Brown, 206 Mo. 718. (3) The information, which is duly verified, is predicated on Sec. 1837, R. S. 1899, and is in proper form and drawn in harmony with approved cases. State v. Wray, 109 Mo. 594; State v. Miller, 111 Mo. 542; State v. Burries, 126 Mo. 565; State v. Hall, 164 Mo. 528.
   FOX, J.

This cause is brought to this court by appeal on the part of the defendant from a' judgment of the circuit court of Camden county, Missouri, convicting him of the crime of rape. The offense of which the defendant was convicted, omitting formal parts of the information, is thus charged:

“Joe Y. Foster, prosecuting attorney, duly elected, commissioned, sworn, qualified, installed and acting as such in and for said county of Camden, in the State of Missouri, upon Ms said oath and upon his hereto appended' oath, informs the court upon his said oath and upon Ms hereto appended oath does depose, present, aver and charge that said defendant, Joseph F. George, Jr., on the 5th day of August, A. D., 1904, at the county of Camden, State of Missouri, in and upon Ida Florence George, a female child under the age of fourteen years, to-wit: of the age of thirteen years, unlawfully and feloniously did make an assault, and her, the said Ida Florence George, then and there unlawfully and feloniously did carnally know and abuse, against the peace and dignity of the State of Missouri.”

To this information the defendant entered his plea of not guilty, and upon trial was convicted and his punishment assessed at five years’ imprisonment in the penitentiary.

At the very threshold of the consideration of this case it is earnestly insisted by the learned Attorney-General that there is nothing before this court for review except the record proper.

We have carefully analyzed the record as presented to this court upon this appeal and find that it absolutely fails to disclose that there was a motion for a new trial filed or the overruling of any motion for a new trial, or that there was any bill of exceptions filed.

It is essential that the record proper show the filing of a motion for a new trial and the overruling of it. While the bill of exceptions should show the filing of the motion for new trial and the action of the court upon such motion, yet in addition to this it is absolutely essential that the record proper show that the motion for new trial was filed and the ruling of the court upon it.

In the recent case of Stark v. Zehnder, 204 Mo. l. c. 448, Judge Yalliant, in speaking of this subject, thus very clearly announced the correct rule: “We should not dismiss- the appeal in this case because we have, in sufficient form, the pleadings, the judgment and the order allowing the appeal, and appellants are entitled to show if they can that the judgment is erroneous on the face of the pleadings, but in the absence of a sufficient showing by the abstract that on the face of the court record proper there are entries showing that-the motion for a new trial was filed, that it was overruled and that the bill of exceptions was filed, we cannot consider any alleged error of the court contained in the bill of exceptions. [Hill v. Butler County, 195 Mo. 511, and other cases cited by respondents in their brief on this motion.] The distinction between what should be contained in the record proper and the bill of exceptions was also very clearly drawn in that case. It was ruled that “'the bill of exceptions alone should contain the motions and exceptions to the rulings, but the record proper should show that the motions were filed and the rulings of the court upon them. A statement in the bill of exceptions that a motion for a new trial was filed and that it was by the court overruled is not sufficient to show either that it was filed or that it was overruled. A bill of exceptions standing alone cannot prove its own validity, a statement therein that it was signed- and filed is not sufficient evidence of the signing or filing. The bill of exceptions derives its right to recognition solely from the fact that the record of the court shows that it was filed. . . . The office of the bill of exceptions is to preserve those proceedings in a cause which do not appear in the record proper and the exceptions taken to the rulings.” It was finally held in that case that there were no record entries showing the filing of a motion for new trial or the overruling of such a motion, or the filing of a bill of exceptions, therefore there was nothing before the court for consideration but the pleadings and the judgment. The conclusion as reached upon this proposilion in the ease cited is fully supported by numerous other cases decided by this court.

Having reached the conclusion that under the condition of the record as presented to this court we are not authorized to review the errors complained of in the bill of exceptions, our attention will now be directed to the record proper as presented to this court. We have reproduced the information upon which this judgment is predicated and find that it is based upon section 1837, Revised Statutes 1899. It is duly verified and is in proper form and drawn in harmony with approved cases. [State v. Wray, 109 Mo. 594; State v. Miller, 111 Mo. 542; State v. Burries, 126 Mo. 565; State v. Hall, 164 Mo. 528.]

As before stated, the defendant duly entered his plea of not guilty to this information; the jury were properly impaneled and sworn to try the cause, and it being submitted to them they returned their verdict, which is in proper form, and, as heretofore stated, finding the defendant, Joseph P. George, Jr., guilty, and assessed his punishment at imprisonment in the penitentiary for a term of five years. Judgment and sentence upon the verdict as returned seems to be in perfect form and harmony with the provisions of the statute concerning that subject.

Finding that the record proper fails to show the filing of a motion for new trial or the overruling of such motion, or that any bill of exceptions was filed, it follows that we would not be authorized to review the action of the court as embraced in what is termed the bill of exceptions presented to this court. Upon this condition of the record the judgment of the trial court should be affirmed, and it is so ordered.

All concur.