author: WALKER, P. J.

text:
    THE STATE v. HARRY MYER, Appellant.
    Division Two,
    June 23, 1914.
    1. ARSON: Information: Ownership of Building. The gist of the offense denounced hy See. 4507, R. S. 1909, which says that every person who shall wilfully set fire to a building adjoining to any inhabited dwelling house, so that such dwelling house shall be endangered by such firing, shall he guilty of arson in the second degree, consists, not in the injury to the building set on fire, but of the danger to the persons occupying the adjoining building; and that being true, the ownership of the building is immaterial, and need not be alleged in the information. The statute is intended to protect human life, rather than property. [Overruling on this point, State v. Whit-more, 147 Mo. 78.]
    2. -: -: -: Distinction. A distinction is to be drawn between the arson of an inhabited dwelling house and the arson of a house not so occupied. At common law an allegation of ownership in an indictment for arson was necessary, because the crime did not consist of setting fire to one’s own dwelling house or one occupied by accused as tenant, since there could be no arson without a trespass to the possession, and one in possession could not be guilty of such trespass. But the common-law rule has been so changed hy statute that if one burn his own dwelling or one he occupies, in which there is at the time a human being, or a building adjoining an inhabited dwelling house, he is guilty of arson, and under such circumstances ownership is immaterial, and an allegation thereof unnecessary, the purpose of the statute being to protect human life. It is only where the offense charged did not endanger human life that the information should charge ownership of the building which defendant set afire.
    3. -: -: Attempt to Burn. Since the statute reads that “every person who shall wilfully set fire to or burn” a building adjoining to an inhabited dwelling house, etc., two offenses are disjunctively denounced, and the first is complete if fire is set to any building in the statute named in an attempt to burn it, and an allegation to that effect is sufficient. An allegation that defendant did “unlawfully, wilfully, maliciously and feloniously set fire to and attempt to burn a certain building,” does not charge simply an attempt instead of the commission of the offense denounced by said statute (Sec. 4507, R. S. 1909). If the words “and attempt to burn” have any effect, they serve to inform the defendant more definitely of the nature of the crime with which he is charged, and in cónsidering the sufficiency of the information it is immaterial whether they he regarded as explanatory words or rejected as surplusage.
    4. -: -: That Dwelling House Was Inhabited. An allegation that defendant set fire to “a storeroom at No. 1003 East Twelfth Street, there situate and adjoining to a certain dwelling house of one E. M. Deming; and that said inhabited dwelling house of one E. M. Deming, by the firing the said storeroom as aforesaid, was then and there endangered,” though inartificially stated, was sufficiently definite to inform the defendant that the storeroom to which the fire was set was adjacent to an inhabited dwelling house.
    5. -: Instruction: Attempt to Burn. It cannot be held that an instruction, directing the jury that if defendant “wilfully,” etc., “set fire to and attempted to burn,” etc., his punishment should be assessed at not less than two years’ imprisonment, told the jury that the “attempt to burn” constituted arson in the second degree, since the gravamen of the offense is “setting fire to,” and whether the words “and attempted to burn” be regarded as purely expletory, or as explanatory in evidencing the intent to burn, they may be treated as surplusage.
    6. REMARKS OF COUNSEL: Uncontradicted Testimony. Remarks of the prosecuting attorney which amount to no more than an expression of his views as to the strength of the State’s testimony, that it had not been rebutted and that there was nothing to the contrary, are not error.
    7. ARSON: Insurance Policy: Secondary Evidence. It having been shown that the policy evidencing that the stock of goods of defendant, who is being tried for setting fire to his own store, was in another State, secondary evidence was, from necessity, properly admitted to prove such insurance.
    8. -: Sufficiency of Evidence. The evidence in this case that defendant set fire to his store, though entirely circumstantial, is held amply sufficient to sustain a conviction.
    Appeal from Jackson Criminal Conrt. — Hon. E. E. Porterfield-, Jndge.
    Affirmed.

      Wofford & Kimbrell for appellant.
    (1) The information is fatally defective for the reason that there is no allegation of ownership of the storeroom or building to which the fire was alleged to have been set and upon which the attempt to burn was alleged to have been made. State v. Wacker, 16 Mo. App. 417; State v. Whitmore, 147 Mo. 78; State v. Jones, 106 Mo. 311; State v. Kelly, 206 Mo. 685; Kelley’s Criminal Law and Practice (2 Ed.), 400; 2 Bishop’s New Criminal Procedure (4 Ed.), sec. 36, p. 18. (2) The information is fatally defective for the reasin that there is no allegation that the dwelling house of E. M. Deming, alleged to have been adjoining to the storeroom or building to which the fire was alleged to have been set and alleged to have been endangered, was an inhabited dwelling house. Sec. 4507, R. S. 1909. (3) The information charges the attempt to commit arson, and does not charge arson. 2 Sharswood’s Blackstone’s Commentaries, chap. 16, p. 481; State v. Hall, 93 N. C. 571; Kinchien v. State, 50 Fla. 102; Mary v. State, 24 Ark. 44'. (4) There is no proof in the record that the dwelling house, alleged to have been adjoining to the storeroom or building to which the fire was alleged to have been set, was adjoining to said storeroom or building. Sec. 4507, R. S. 1909. (5) Instruction 2 is erroneous for the reason that it authorized and permitted the jury to find defendant guilty of an offense not charged in the information, and authorized and permitted the jury to assess a punishment greater than the law prescribes for the offense charged in the information. State v. Milligan, 170 Mo. 215; Sec. 4894, R. S. 1909. (6) Instructions 1 and 2 are erroneous for the reason that they told the jury that if they found and believed from the evidence defendant did then and there unlawfully, maliciously and feloniously set fire to and attempt to burn the storeroom or building they should find defendant guilty of arson in the second degree. In other words, the court told the jury that an attempt to commit arson was arson. This is not the law. Authorities cited in Point 3. (7) The court erred in admitting secondary and hearsay evidence with reference to the policy of insurance which the State contended had been issued to defendant on the stock of goods in the storeroom or building. State v. Harvey, 130 Iowa, 538; State v. Martin, 229 Mo. 620.

      John T. Barker, Attorney-General, and W. T. Rutherford, Assistant Attorney-General, for the State.
    (1) It was not necessary to allege the ownership of the storeroom. Sec. 4507, R. S. 1909; People v. Handley, 100 Cal.. 370; Hnited States v. McBride, 7 Mackey (D. C.), 371; State v. Hunt, 190 Mo. 358; Shepherd v. People, 19 N. Y. 540. (2) The information alleges the dwelling house to have been inhabited and.is therefore sufficient in that respect. Evidence showing that an inhabited dwelling house adjoined the storeroom was admitted without objection and the information was good after verdict. (3) The allegation in the information “adjoining a certain dwelling house of one E. M. Deming” is sufficient. Wolf v. State, 53 Ind. 30; Jordan v. State, 142 Ind. 422; Baker v. State, 25 Tex. App. 1. (4) It was not necessary to prove the ownership of the adjoining dwelling house. It was only necessary to prove that it was inhabited at the time of the fire. It was not material who owned it. Authorities cited under Point 1; State v. Jones, 171 Mo. 404. (5) The information charges and the proof sustains arson and not an attempt to commit arson. Polsten v. State, 14 Mo. 463; State v. Taylor, 45 Mo. 322; Fairchild v. People, 48 Mich. 31; Sec. 4507, R. S. 1909. (6) Instruction No. 2 was correct and did not authorize the jury to convict defendant of an offense not charged. Authorities cited under Point 5. (7) The policy of insurance issued to appellant not-being within the jurisdiction of the State at the time of the trial, secondary evidence was admissible. State v. Martin, 229 Mo. 636; State v. Flanders, 118 Mo. 237.
   WALKER, P. J.

In April, 1913, appellant was convicted in the circuit court of Jackson county, of arson in the second degree, in having set fire to a storehouse adjoining a certain inhabited dwelling house, and his punishment assessed at three years’ imprisonment in the penitentiary. Pending this appeal appellant is under recognizance.

Omitting the formal parts and signature of the prosecuting attorney, the information is as follows: “that Harry Myer, whose Christian name in full is unknown to said assistant prosecuting attorney, late of the county'aforesaid, on the 6th day of July, 1912, at the county of Jackson, State of Missouri, did then and there unlawfully, wilfully, maliciously and feloniously set fire to and attempt to burn a certain building, to-wit, a storeroom at No. 1003 East Twelfth street, there situate and adjoining to a certain dwelling house of one E. M. Deming, there situate; and that said inhabited dwelling house of one E. M; Deming, by the firing of the said storeroom as aforesaid, was then and there endangered, against the peace and dignity of the State.”

The verdict of the jury, omitting signature of foreman, is as follows: “We, the jury, find the defendant guilty of arson in the second degree as charged in the information and assess his punishment at three years in the State Penitentiary.”

Near midnight, July 6, 1912, a police officer, walking his beat on East Twelfth street, Kansas City, saw smoke issuing from the transom or ventilator over the door and from crevices in the windows of a storeroom at No. 1003 on'said street; upon closer investigation he found the room filled with smoke and called the fire department. The store was broken open by firemen, when a strong odor of kerosene and turpentine was perceptible. The counters, shoe boxes, racks, shelves and goods were found covered with excelsior, which had been saturated with a mixture of kerosene and turpentine. Two or three spots on the floor indicated that this mixture had been poured thereon. Along the floor a train of excelsior, also moist with the same mixture, led to the basement stairway and down the steps into same, where a barrel was found one-third full of oil, around which was piled like-saturated excelsior. Excelsior had also been scattered over the cement floor of the basement, hut it had burned off until the fire reached the foot of the stairway leading to the storeroom, when it had become extinguished. Several upright timbers in the basement, which had been placed there as the framework of a partition, but from which the laths and plastering were off, were charred from the floor upward two or three feet. The doors of the storeroom and basement had been locked and barred on the inside, and the windows covered with cloth. The building in which the store was located was two stories in height, and. in the second- story a family consisting of several persons resided and were in the building on the night in question.

Appellant was arrested at his residence in a different part of the city about an hour or more after the discovery of the fire. He denied any knowledge of the transaction. A police captain who made a careful examination of the premises the morning succeeding the attempted burning of the building, testifies to substantially the same facts as above in regard to the condition of the store when he made the examination. Eefurning to the police station he had a talk with appellant. The latter said that he had the only key to the store. While talking, appellant pulled out his handkerchief which emitted a strong odor; when it was taken from him, he fainted; it smelled strongly of turpentine and kerosene. Upon being revived, appellant was asked as to the odor of the handkerchief, and said he could not account for it as he had used it only to wipe his face and hands. He made a signed statement. Among others things he said; “I own the stock in the store at 1003 East Twelfth street; I gave $4800 for it, paying $3000 cash, and still owe $1000 on the purchase price. I have $4000 insurance on the stock. I am the only one who has a key to the store. I left it about 9:30 o’clock p. m., the night of the fire. I put aprons over the inside of the windows to keep out the dust.” The day succeeding the discovery of the fire, a fire warden made an invoice of the stock of goods in the storeroom, and exclusive of fixtures, a sewing machine and refrigerator, its estimated value was fixed at $165.50.

The foregoing is in substance the abstract of the facts as made by counsel for appellant, to which he adds: “The defendant did not testify and no testimony was offered in his behalf.”

The statute which appellant was charged with having violated is as follows: “Every person who shall wilfully set fire to or burn any shop, warehouse, office, storehouse or other building not being the subject of arson in the first degree, but adjoining to or within the curtilage of any inhabited dwelling house, so that such dwelling house shall be endangered by such firing, shall, upon conviction, be adjudged guilty of .arson in the second degree.” [Sec. 4507, R. S. 1909.]

I. (a) The gist of the offense, under section 4507, Revised Statutes 1909, consists, not in the injury to the building set fire to, but the danger to the persons occupying the adjoining building. This being true, the ownership of the building is immaterial and need not be alleged. Under an indictment for an attempt to commit arson in State v. Hayes, 78 Mo. 307, 313, it was. contended by the defendant that the indictment was bad for not charging the ownership of the house in the defendant. It was charged that the house was occupied by certain families named, human beings other than the defendant. “The statute,” said the court, “denounces the act of burning ‘any dwelling house, in which there shall be at the time some human being.’ It was not even necessary to name the person occupying the house.” In an early case (State v. Aguila, 14 Mo. 130) cited with approval in the Hayes case, supra, the court said in effect: “Where the facts which constitute the arson are set down and specified, an indictment in the words in which the offense is created is sufficient.”

The reason for the necessity of an allegation of ownership in an indictment for arson at common law was that the crime did not consist in setting fire to one’s own dwelling house or one he occupied as tenant, because there could be no arson without a trespass to the possession and one in possession could not be guilty of a trespass against his. own possession, therefore, it became material to allege ownership other than in the occupant. But the common-law rule has been changed by statute so that if a person burn his own dwelling or one he occupies, in which there is at the time a human being, he is guilty of arson. Under such a state of facts, the ownership is immaterial, because the statute is intended to protect human life rather than property. [State v. Young, 153 Mo. 445,] In the case at bar a like purpose is evident in'the statute upon which the information is drawn and, therefore the same rule is applicable. Keeping the distinction in view as- to whether the offense charged in a particular case endangered property or life, we are enabled to readily distinguish the Missouri cases in which it has been held that an allegation of ownership is essential in indictments for arson. [See State v. Whitmore, 147 Mo. 78; State v. Wacker, 16 Mo. App. 417.] In the Whitmore case, supra, the offense consisted in the burning of a county jail, primarily an offense against property. The court held in this case that where the indictment was drawn upon what is now section 4505, Revised Statutes 1909, the ownership should be alleged in the jailer who occupied the building, the reason for this ruling being stated thus: “At common law the ownership of the house must be alleged and proved as laid. Our statute had not done away with this requisite of the common law.” This ruling clearly ignored the reason for the allegation of ownership required by the common law, and as a consequence the change in the statute which rendered such allegation in certain cases unnecessary. In so far, therefore, as the Whitmore case holds that an allegation of ownership is necessary in an indictment for arson, where the offense charged endangers life, it should be overruled. The reasoning in the Wacker case turns upon the indefiniteness of the indictment in simply alleging that the accused “set fire to and burned a certain dwelling house in the city of St. Louis;” this indictment, it must be admitted, was insufficient in not clearly informing the defendant of the particular act charged against him. No such grounds of complaint can be urged against the information in the case at bar, which alleges the location of the building set fire to, by street and number. It is also evident from the facts in the Wacker case, that the offense charged was one endangering property and not life, and hence an allegation of ownership was material.

(b) The sufficiency of the information is further challenged on the ground that it only- charges an attempt instead of the commission of the offense. The language of the statute upon which the information is based is, in the charging part, that “every person who shall wilfully set fire to or burn,” etc.; it will be seen that the offenses are disjunctively denounced in the statute, and the first is completed if fire is set to any building therein named in an attempt to burn same, and an allegation to that effect is, therefore, sufficient. It is a mere trifling with words to say that where it is alleged in the language of the statute, as it is here, that the defendant “unlawfully and feloniously set fire to” the building named, that only an attempt to commit the crime is charged, because the explanatory words “and attempt to burn” follow the principal allegation in the information. If such explanatory words have any effect, they serve to inform the defendant more definitely of the nature of the crime with which he is charged, and so far as the sufficiency of the indictment is concerned it is immaterial whether they be regarded as explanatory words or be rejected as surplusage. In State v. Jones, 106 Mo. 302, 311, this court held that the use of the words “did set fire to and burn” did not charge two offenses; it has also been held in another jurisdiction that the words “set fire to” are equivalent to the word “burn” (State v. Taylor, 45 Me. 322); and in another, that an allegation “of burning” in a charge for “setting fire to” may be rejected as surplusage (State v. Hull, 83 Iowa, 112). Viewed from every angle of interpretation, there is, therefore, no merit in this contention.

(c) The information is further challenged because it is contended that the dwelling house adjoining the building set fire to was not alleged to be inhabited. The language of the information in this regard is as follows: “a storeroom at No. 1003 East Twelfth street there situate and adjoining to a certain dwelling house of one E. M. Deming there situate; that said inhabited dwelling house of the. said E. M. Deming, by the firing of the said storeroom as aforesaid, was then and there endangered.” While this is an inartificial statement of the language of the statute, it is sufficiently definite to inform the defendant that the building set fire to was adjacent to an inhabited dwelling house, and there is, therefore, no uncertainty as to the allegation in reference to the subject-matter of the offense which the appellant was called on to meet. [State v. Moore, 61 Mo. l. c. 278.]

II. Appellant contends that instruction numbered 2 given by the court was erroneous. It is as follows:

“The court instructs the jury that if they find and believe from the evidence that at the county of Jackson and State of Missouri, at any time within three years next before the 15th day of November, 1912, the date of the filing of the information in this case, the defendant, Harry Myer, did then and there unlawfully, wilfully, maliciously and feloniously set fire to and' attempt to bum a certain building, to-wit, a storeroom at number 1003 East Twelfth street, there situate and adjoining to a certain inhabited dwelling house of one E. M. Deming, there situate, and that said inhabited dwelling house of the said E. M. Deming, by the firing, if any, of the said storeroom as aforesaid, was then and there endangered, then you will find the defendant guilty as charged in the information and assess his punishment at imprisonment in the State Penitentiary for any term not less than three years.
“Wilfully means intentionally not accidentally.
“Feloniously means wickedly and against the admonitions of the law, unlawfully.
“Maliciously means a wrongful act intentionally done without just cause or excuse.”

The appellant’s contention is that this instruction told the jury that the “attempt to burn” constituted arson in the second degree. As we have shown in discussing the information, the language of which is followed in the instruction, the gravamen of the offense is the “setting fire to;” and whether the words “and attempt to bum” be regarded as purely expletory in either the information or the instruction, or as explanatory in evidencing the intent to bum previously charged, they may be treated as surplusage.

In State v. Hull, 83 Iowa, 112, an indictment charged that the defendant caused to be set fire to and burned a large amount of combustible material with the intention to cause a certain described store building to be burned, and did then and.there in the manner and at the time and place aforesaid, set fire and cause to be burned the said store building, it was held that the charge as to the actual burning must be regarded as an allegation of evidence, and, therefore, to be treated as surplusage. While this was a ruling in regard to the indictment, it is equally applicable in construing an instruction.

In State v. Hayden, 45 Iowa, 11, the charge was of breaking and' entering a store building wherein valuable merchandise was kept for sale, with intent to steal said goods and that he did steal certain articles named. It was held that the allegation that “he did.’ steal” was a statement of evidence and, therefore, surplusage.

In the case at bar, as in the Hull case, supra, not only the charge, but the instructions, verdict and judgment show that the appellant was tried for setting fire to the store and attempting to burn same, and not for burning it, and such a consistency appears in the entire proceeding that the appellant has no just cause of complaint on account of the instructions.

III. There is no merit in appellant’s contention that the remarks of the prosecuting attorney were prejudicial. In each instance when the remarks were made, although it is exceedingly doubtfnl whether they were objectionable, the court directed that they be withdrawn from the consideration of the jury. No request was made by counsel for the appellant that the court rebuke the prosecuting attorney, but it was asked to discharge the jury, whereupon the court, as we have stated, withdrew the remarks of the prosecutor, and the latter did likewise. The remarks of the prosecutor consisted of a comment upon the evidence. A stronger case is presented in support of objectionable remarks by counsel in State v. Ruck, 194 Mo. l. c. 440, in which it is held that uncontradicted evidence on the part of the State may be referred to as such by the prosecutor without error. Here, as in the Ruck case, the remarks complained of amounted to no more than an expression of counsel’s views as to the strength of the testimony on the part of the State, and that it had not been rebutted and there was nothing to the contrary. We have never gone so far as to hold this to be error.

IV. The policy evidencing the insurance on appellant’s stock was shown to be in another State. Secondary evidence was, therefore, from necessity admitted to prove such insurance. [State v. Martin, 229 Mo. 620, 635; State v. Flanders, 118 Mo. 227, 237.]

V. Without repeating the testimony set forth at some length in the statement, the salient outlines of same may be noted as follows: The small value of the stock and the large amount of insurance; indubitable evidence of arson in the distribution over the interior of the stock, store and basement of quantities of excelsior saturated with oils, of the highly inflammable nature of which we take judicial notice; the barring of the doors and windows from the inside; the admitted fact that no one except the defendant had a key to the premises; his presence at the store at 9:30 o ’clock the night of the fire; and last, but not least, the possession by the appellant, when he was arrested and taken to the police station, of a handkerchief strongly impregnated with the odors of kerosene and turpentine. So much for the evidence of arson, circumstantial it is true, but so closely connected are the facts, all of which point to- appellant’s connection with the transaction, that ample grounds were afforded for the finding of the verdict.

Tlie testimony as to the fact that the dwelling adjoining the store was inhabited, shows that there were several persons who not only resided there bnt were in said dwelling during the night when the store was set fire to and that they rushed out of same in their night clothes when the alarm of fire was given. The actual evidence of the setting on fire of the building is shown by the fact that the excelsior which had covered the floor of the basement, had been burned off and the wooden uprights which had formed a framework for a partition in the basement had been charred for two or three feet upward from the floor. [State v. Bobbit, 228 Mo. l. c. 263; State v. McCaffery, 225 Mo. 617.] It would be difficult to find a stronger case of circumstantial evidence of arson than is, here presented. There is, therefore, no merit in the contention that there is an insufficiency of evidence to support the verdict.

In view of the foregoing it follows that the judgment of the trial court should be affirmed, and it is so ordered.

Brown, J., concurs; Paris, J., not sitting.


source: Caselaw Access Project

author: FARIS, J.

license: Public Domain

text:
    THE STATE v. EDGAR SCHNEIDERS, Appellant.
    Division Two,
    June 23, 1914.
    1. VERDICT: Contradictory: Misprision: Query. If tlie first count in tlie indictment charged forgery in the third degree, and the second did not so charge, hut charged the uttering of the forged note, and the verdict finds “the defendant guilty of forgery in the third degree, as charged in the second count of the indictment,” should the verdict be upheld by casting out the word “second” as being a mere clerical error, or be held bad for that it is contradictory and indefinite?
    2. INDICTMENT: Forgery: Name of Simulated Person. Ordinarily the indictment should state the name of the person whose act the alleged forged instrument purported to be, and the name of the person in whose favor the purported obligation is created —and where there are five names on the instrument, three of which are genuine and only two of which are claimed to be forged, the indictment should name those two.
    3. VENUE: Named Street in State: Judicial Notice. The court cannot take judicial notice that “730 Chestnut Street” is in the city of St. Louis or in the State of Missouri; and proof that the forged note was uttered at “730 Chestnut Street” is not sufficient proof of the venue.
    4. ARGUMENT OF COUNSEL: Denouncing Defendant: No Rebuke. Counsel in arguing a case to a jury may use invective, and latitude in characterizing a monstro'us and heinous crime is allowed; but the invective and latitude should be based upon the facts of the case. Where there was no proof that defendant was a perjurer or suborner of perjury or was a crook, and no rebuke by the court or ruling upon defendant’s objection, statements by the State’s counsel in his argument to the jury that defendant was a “perjurer”' and a “crook” and a “sneak” were prejudicial error.
    5. FAIR TRIAL: To a Guilty Defendant. Although defendant is very probably guilty, he is entitled to a fair trial. His guilt ought not to be assumed.
    Appeal from St. Louis City Circuit Court. — Hon. James E. Withrow, Judge.
    Reversed and remanded.

      Hudson & Hudson for appellant.
    The circuit attorney in his closing argument to the jury was allowed by the court, over the objections of the defendant, to heap odium and invective on the head of the defendant in the presence of the jnry by calling him such names as “crook,” “scoundrel,” “whiner,” “perjurer,” “maudlin crook,” “sneak,” and other vile and insulting epithets. State v. Prendible, 165 Mo. 329; State v. Fischer, 124 Mo. 464; State v. Kring, 93 Mo. 595'; State v. Jackson, 95 Mo. 653.

      John T. Barher, Attorney-General, for the State; Sutton S Huston of counsel.
    (1) The indictment follows the language of the statute and the approved forms and is sufficient. Secs. 4651, 4656, R. S. 1909; State v. Mills, 146 Mo. 195, 204; State v. CMssell, 245 Mo. 554; State v. Paul, 203 Mo. 683; State v. "Watson, 65 Mo. 117; State v. Carragin, 210 Mo. 354. (2) The defendant was convicted under the second count of the indictment, which is bottomed upon Sec. 4656, R. S. 1909. Every element of the offense charged is fully substantiated by the evidence. State v.' Chissell, 245 Mo. 549; State v. Mills, 146 Mo. 195; State v. Watson, 65 Mo. 115; State v. Carragin, 210 Mo. 351. (3) This court has uniformly refused reversals on account of the use of epithets where such epithets were suggested by and related to the facts in evidence, or called forth by the character of the crime, as dis-closed by the evidence, as it has uniformly condemned mere abuse not related to or justified by the evidence. State v. Rasco, 239 Mo. 580; State v. Brooks, 92 Mo. 589; State v. Allen, 174 Mo. 698; State v. Zumbunson, 86 Mo. 113; State v. G'artrell, 171 Mo. 512; State v. Miles, 199 Mo. 533; State v. Emory, 79 Mo. 463 ; State v. Griffin, 87 Mo. 615. The character of the crime committed by defendant, and the artful machinations employed by him to accomplish his purpose, as shown by the evidence, tended strongly to characterize Mm as a “crook,” and we see no reason why the prosecuting attorney should not as well call to the attention of the jury this fact as any other fact deducible from the evidence in the case. A great deal has been said in condemnation of attempts to move the passions of jurors by abuse of prisoners on trial; but there is no reason to condemn, or even criticise, a prosecuting officer for endeavoring to arouse in the jurors a righteous wrath against crime and criminals, by the strongest denunciation and fiercest invective, which the character of the crime as disclosed by the evidence will justify. State v. Miles, 199 Mo. 547. (4) The verdict finds the defendant guilty of forgery in the third degree, as charged in the second count of the indictment, and assesses Ms punishment at imprisonment in the penitentiary for a term of two years, and we are unable to see what more could be required. The verdict is sufficient in every particular. State v. Shoemaker, 7 Mo. 177; State v. Carragin, 210 Mo. 369.
   FARIS, J.

Prom a conviction in the circuit court of the city of St. Louis of the crime of forgery in the third degree, and a sentence therefor to imprisonment in the penitentiary for a term of two years, defendant has appealed.

The indictment contained two counts; the first of which charged him with forging a certain promissorjnote, and the second thereof with uttering said forged note.

The facts in the case as we gather them from the record, are that the Industrial Loan Company (hereafter for brevity called Loan Company), the payee in the note said to have been forged and uttered, is a corporation under the laws of Missouri and engaged inferentially in the city of St. Louis in the making of loans in small sums, seemingly to persons of small means, which loans are agreed to be repaid in weekly installments. In order to procure a loan it is necessary for the applicant therefor, who in this case was the defendant, and who is styled “the maker” in the note he is required to malm, and “the holder” in the contract in which he is required to enter into, to sign an application for such’loan, which application must also be signed by two guarantors who obligate themselves to pay, in the event of the borrower’s default. The note made is also required to be signed by such guarantors, who are styled therein “co-makers.”

About the 8th of January, 1913, defendant being desirous of obtaining a sum of money approximating $200, for the purposes, as he contends, of meeting pressing demands and of procuring medical treatment for a small son, or as the State on the other hand contends, for the purpose of procuring the signing of a bail bond for the brother of defendant then in jail on the charge of embezzlement, made an application to the Loan Company for a loan in said sum of $200. This application was signed by F. E. Thorwegen and Joseph M. Press. The latter testifies that he signed this application himself and that his name is “Joseph H. Press;” it appears in the record as “Joseph M. Press,” and he swears he was in the habit of signing his name as “Joseph W. Press.” The application for this loan was either written by or in the presence of saidl Press.

Just here we would as well say that there is no contention by the State that any other names on this note, except that of Joseph H. Press and J. W. Breen have been forged by defendant or anyone else.

The proof in the case shows that after the application for this loan was made out and signed by said Press he agreed to sign and intended later to sign the note. This note was afterward presented to him, but since the time of its presentation to him for his signature was not within business hours, he declined to sign it at 'that time, but requested defendant to come again the next day. Afterward, he says, he was told by defendant that he had gotten the matter through without the necessity of having the witness Press sign it. Defendant contends, and this is his defense as to this signature, that Press did sign this note and as to him there is no forgery.

After the note was signed by the defendant, by the latter’s wife, Helen Schneiders, and F. E. Thorwegen, all of whom, as stated, are bona fide signers and touching none of whom is there any contention of forgery, it was presented to the Loan Company containing also the name thereon of “Joseph M. Press.” The Loan Company took time to investigate the standing of the maker, as well as the co-makers, and after making such investigation and laying, as the cashier thereof testifies, the matter of this loan before the Loan Company’s directors, defendant was requested to obtain further security, which he did, or pretended to do by placing thereon the name of J. W. Breen. Subsequently the note was delivered to .the Loan Company with the names of said Press and said Breen thereon.

The defense as to the alleged forgery of the name of J. W. Breen is, that his name was not on this note when it was delivered to the Loan Company. A number of witnesses, however, called by the State and who are connected in divers capacities with the Loan Company, testified that the name of Breen was on the note when it was delivered to them by defendant. Upon delivery of the note it was discounted at the rate of six per cent for a year and defendant paid by a check the sum of $188, on which check he obtained the cash.

The testimony of J.- W. Breen, whose name the State contends was forged on said note, is in substance that he never, signed his name thereon and was never asked by defendant to do so, but that he did write a letter of recommendation to the Loan Company, which letter was offered by the State. The witness Breen further says that upon receiving notice from the Loan Company of defendant’s default in making his payments, he immediately notified the Loan Company that he had not signed the note and he also notified defendant and asked for an explanation, and that shortly afterward he met defendant in an office building in St. Louis and defendant said to him, “I suppose you want to kill me,” and the witness replied, “No, I am sorry for you.” This witness also testified that he was familiar with the hand-writing of defendant and that the signature of witness’s name upon the alleged forged note was not, in his opinion, the writing of the defendant.

The witnesses Arthur A. Blumeyer and Alice Miles, the first of whom is cashier and the other a stenographer for the Loan Company, both testified for the State that defendant brought the note into the office ©f the Loan Company on January 8, 1913, and that when the note was delivered it contained the names of both Press and Breen, signed thereto as “comakers. ’ ’

Defendant testifying for himself corroborates the facts shown by the State down to the point where the note was given him by the Loan Company for the purpose of having it signed by himself and his co-makers. Thereafter he said he saw Mr. Thorwegen and Mr. Press and that all three went to defendant’s home together and signed the note. To corroborate his defense that the witness Press did in fact sign the note, he called Ella Schneiders, the wife of his brother, and his son Arthur Schneiders, a boy aged some eleven years, both of whom testified that they saw Press making out at the home of defendant certain papers, which were called while the work of preparing the same was progressing, “co-maker’s papers,” and both of these witnesses testified that Press did sign .this note. Upon cross-examination, however, it becomes somewhat doubtful whether much credence is to be placed.upon this phase of their testimony, since the witness Press himself admits signing .the application, and since the testimony of these two witnesses shows pretty clearly only one act of signing of the witness Press on this occasion. Thorwegen, the other alleged witness of the signing of the note, for some reason left muddy in the record, did not testify in the case.

Returning to the testimony of defendant himself, he admits that J. W. Breen did not sign the note, but he says that the name of Breen was not thereon when he delivered the note to the Loan Company and got the money on it. The defendant further testifies that he loaned the witness Press $35' in order to get Press to sign the note in question and that Press had not repaid this sum at the time of the trial. Defendant also relates in his testimony certain domestic matters, as explanatory of the hostility toward him of the witness Press.

The verdict of the jury sets out that defendant was found guilty of forgery in the third degree, but further states that he was found guilty on the second count of the indictment.

The only proof in the record as to where the matters and things complained of in this prosecution occurred, appears from the testimony of the- witnesses Press and Breen. Press having stated that the blank note without any signatures whatever thereon, was- presented to him by defendant with the request that he sign it, and that he did not sign it, was thereupon asked by the State where this matter occurred. He replied that it took place in the city of St. Louis and State of Missouri. Likewise the witness Breen having testified for the State that he never saw the note in question and that he never signed the same, and that he had never been asked by defendant to sign it, but that he had written a letter of recommendation of defendant to the Loan Company, was asked whether the matters and things about which he testified had occurred in St. Louis and he answered that they did. The testimony of the witness Blumeyer, the cashier of the Loan Company, merely shows that the said company is located at 730 Chestnut street, and that it is a corporation of this State and that the witness received the alleged forged note on behalf of the Loan Company and as cashier thereof, but the record nowhere shows that the note was either forged in the city of St. Louis, nor does it show, except by whatever vague inference arises from what we have set out, that it was uttered in the city of St. Louis.

The above facts we deem sufficient, with the aid of what we shall say in the opinion, to make clear the points therein discussed.

I. Many points are urged upon us for the reversal of this case. Among these it was urged in the motion in arrest that the first count of the indictment, being that count upon which defendant was found guilty, is not sufficient to charge defendant with the commission of any crime against the law. In passing we may say that the mistake of the trial jury in preparing their verdict has misled learned counsel for the State into making the statement that the conviction of defendant was upon the second count, that of uttering the alleged forged note as true, knowing the same to have been forged. This verdict says: “We, the jury in the above entitled cause, find the defendant guilty of forgery in the third degree, as charged in the second count of the indictment,” etc. The second count of the indictment did not charge forgery in the third degree; the first count did so charge him. So if we are to uphold this verdict we must cast out the word “second” as a mere clerical error, and write therein the word “first,” or we must say the verdict as rendered by the jury is bad, for that it is contradictory and indefinite. Upon this point, however, we need not and do not now pass, farther than to justify our taking issue with learned counsel as to which crime defendant was in fact convicted of. This identical tangle 'likewise occurs in the judgment of the learned trial court. As we must reverse the case for other reasons, and as these misprisions will not necessarily occur again, we need not now pass upon them.

Returning to the charging part of the first count, which sought to charge forgery in the third degree, we note that, formal parts and parts common to all indictments omitted, it says: “That Edgar Schneiders, on the 8th day of January, 1913, at the city of St. Louis aforesaid, feloniously and wilfully did forge, counterfeit and falsely make a certain false, forged and counterfeited promissory note, which said promissory note was then and there an instrument of waiting' purporting to be the act of another, and which said instrument of writing purported to create a pecuniary demand and obligation, which said false, forged and counterfeited promissory note and instrument of writing is of the purport and effect following, to-wit:” (Here followed a true copy of the instrument alleged to have been forged, and following same, the ordinary and usual allegations of a good indictment under section 4651, Revised Statutes 1909.)

We think that ordinarily section 22 of article 2 of our Constitution requires a more certain and definite statement of the name of the person whose act the alleged forged instrument purported to be, as also ordinarily (though on the latter poiiat in the instant case the setting out of the instrument in full' made unnecessary what we are next to say) the person in whose favor such obligation purported, by the forged instrument to be created. The indictment here merely says that the instrument purported “to be the act of another.” (Italics above all oua*s.) The names of defendant, of defendant’s wife and F. E. Thorwegen, were not forged; only as the issue is and as the State contends, were the names of Press and Breen forged. Good pleading requires an apt allegation of this fact, as practically all of the approved precedents under said section 4651 have it. [Kelley’s Crim. Law, sec. 780; State v. Paul, 203 Mo. 681; State v. Carragin, 210 Mo. 351; State v. Chinn, 142 Mo. l. c. 511; State v. Jackson, 90 Mo. 156.] We are aware that an indictment very similar to that here in question, in that it merely said the instrument of writing purported “to be the act of another,” was held good in State v. Bell, 212 Mo. 111; but there the whole instrument was forged; there was but one signature and that one forged. Here in the instant case, even upon the theory of the State, only two signatures out of five were forged; the other three were tona fide.

It might well be that under the facts in the case of State v. Bell, supra, the indictment there passed on fully met the constitutional right guaranteed to an accused person “to demand the nature and cause of the accusation.” [Sec. 22, art. 2, Constitution.] For there, since there was but one name forged as alleged maker of the forged instrument and the instrument itself was set out in full in the indictment, it thus showed whose act the forged instrument purported to be. It may well be that some such view was in the mind of the learned judge who wrote the opinion in State v. Bell, supra. But in the instant case there was nothing upon the face of the first count of the indictment or upon the record to apprise defendant that he was to be tried for forging the names of Press and Breen. We need not pass upon the question as to whether the indictment is fatally bad; we yet hold that it is not in harmony with the great weight of precedent, and think that if defendant is to be retried, the charge, if the State is so advised, should be made to conform to the precedents and the facts.

II. There is no sufficient proof of venue in the case, unless we notice judicially that 730 Chestnut street is in the city of St. Louis. The proof shows that the note in question was delivered to the Loan Company and that the Loan Company is a corporation of Missouri and has its office at 730 Chestnut street. The Chestnut street in question is not shown to be in St. Louis, or necessarily in Missouri. The proof shows that the blank note without any signature whatever thereon, was exhibited to the witness Press in the city of St. Louis, but it was then not a forgery; it was but a piece of blank ¡paper, and Press would as well have been shown the writing tablet upon which defendant afterward wrote a forged note. As we are not permitted to judicially notice that the Chestnut street mentioned in the evidence is in the city of St. Louis (Woodson v. Railroad, 224 Mo. 685; Vonkey v. St. Louis, 219 Mo. 37), we are not able even to infer venue from this record, much less find it to be shown thereby.

III. Strenuous complaint is made by defendant touching the remarks of the learned State’s attorney. We set out below a fifty-six line excerpt from the closing argument of counsel to the trial jury. This last speech of the learned assistant prosecuting attorney consisted in all of ninety-seven lines in the original record. Of that ninety-seven lines we set out fifty-six in the below excerpt, as also the objections and exceptions of defendant, to-wit:

‘ ‘ Mr. Maroney: Gentlemen, I am going to let you have all of these papers. Gentlemen, that is not the ordinary custom, but when you are comparing signatures just take the signature of Thorwegen signed to that application and signatures of his father, or what is supposed to be his father’s, on this bond, and you will see where $200 went. If you will step around here after a while we will show you Mr. Thorwegen. You need not smile. He will be around all right, and he will be here for keeps.
“I want to say to you gentlemen of the jury that any man that will falsely swear as did this defendant, I let him have plenty of rope on the stand. The whining man sitting there is just the kind of a sneak that would come in here and besmirch his wife for the purpose of saving his own hide, just the kind of sneak that would have his own child take the stand and perjure himself to save him. I have had lots of experience and I am somewhat of a judge of men; I never in my life saw a defendant that would besmirch his- own wife, perjure himself and family, that wasn’t guilty.
“Counsel for the defense objects to the statement of the circuit attorney.
“Mr. Carter advised you that he might have done this to get his brother out. I want to say to you 'that the actions of these courts are too sacred and the security of the general public and tax-paying community is altogether too sacred to have one crook committing forgery to get another crook out of jail. We have something to do here besides listening to the maudlin weeping of a crook; you have yourself and family and the community to consider, and you have to stop crime; that is your business, not mine.
“Counsel for defendant object to the remarks of the circuit attorney.
“It is not bothering me any, but I do not like to have a lawyer appeal to twelve jurymen and have the defendant sit here and weep with the expectation that that jury will perjure themselves to save a crook. I want to say to you that it is your affair, not mine. You are the State of Missouri. I want to, say to you that the exhibition brought into this case is an appeal to maudlin men, not real men, because anything that will get behind a skirt to save himself is a coward at heart and it takes a coward to do the sneaking work of forgery. If he gets caught he-only whines. You never saw a highwayman or burglar ever do any whining; you can hang one of them and they would not even bring a prostitute to save them; they would not bring in a prostitute and involve her in the case to save their own neck. I want to say to you men in conclusion if you permit yourselves to be swayed by such efforts for sympathy here that ypu simply do this, you perjure yourselves the same as if you took the stand and did it.
“I want to say to you that you cannot too severely punish him. When you look over these papers you have there I do not think twelve men can come up here and say men like Blumeyer or a girl like that, or a man like Bohan, or Mr. Breen, who testified in the case, are perjurers and liars and this crook is a decent-man.
“Mr. Carter: We want to object to this entire speech; he has called this man a crook and points to him as a scoundrel; under the evidence he has been presumed to be innocent until his guilt is established beyond any question of doubt. There is no evidence to show he ever committed a crime.
“Mr. Maroney: If this evidence has not proved him to be a crook, I have failed in my duty.
“To which objection of the defendant’s counsel the court did not rule; to which action of the court in not ruling on the objection, and in not rebuking counsel for the State, defendant duly excepted at the time. ’ ’

We think that in this case the language of the prosecuting attorney, viewed in the light of the court’s failure to rebuke him, or even to rule upon the several objections made, constitutes reversible error. [State v. Webb, 254 Mo. 414; State v. Baker, 246 Mo. l. c. 376; State v. Hess, 240 Mo. l. c. 160; State v. Spivey, 191 Mo. l. c. 112.] Our attention has been called to many cases wherein it is averred equally as strong-language was used as was used in the above excerpt. [State v. Rasco, 239 Mo. l. c. 580; State v. Allen, 174 Mo. l. c. 698; State v. Zumbunson, 86 Mo. l. c. 113; State v. Gartrell, 171 Mo. l. c. 512.] These latter cases will be found for the most part to fall into one of the below three classes, (a) where the court sufficiently rebuked the State’s attorney, or (b) insufficiently rebuked him, and defendant failed to except to the insufficiency thereof, or (c) where there was some basis in the proof for the language used by the prosecuting attorney. Here there was neither rebuke by the court nor proof in the record that defendant was a perjurer, or a suborner of perjury or that he was a “crook,” but on the contrary he had never before been charged with any crime. The evidence adduced by the State in two letters, which the State itself offered, so far from showing a bad reputation, tended strongly to show trustworthiness and by inference a good reputation. If the defendant had been an habitual criminal, or if he had ever before been guilty of any offense against the law, there would have been an excusing element based upon the proof for the language of counsel. Some invective may be used, some latitude in characterizing a monstrous and heinous crime is allowed, but the invective and the latitude ought to be bottomed upon the facts or upon some fact in the case. This is practically what our cases in a general way, seem to hold.

It is idle to urge that since the defendant is very probably guilty, it therefore makes no difference whether he was given a fair trial or not. The trial guaranteed by the Constitution, even though not expressly so stated, yet connotes a fair and impartial trial according to the law of the land. The question of guilt ought not to be assumed and the trial of the accused then be had along the lines of a. logic which says in effect: What difference does it make how he was tried since he is guilty? Such logic necessitates a begging of the identical question which it is the province of the trial to determine, and it violates the very spirit if not the-letter of every safeguard written by the fathers into our Bill of Rights with the intent to protect the life and liberty of the citizen.

In many other respects the rights of the defendant to a fair and impartial trial were but little heeded; but to incompetent evidence offered by the State throughout the case and to forbidden cross-examination of the defendant, either no objection at all was made or insufficient objections were made, thus precluding any review here. The whole record in the case makes apposite what we lately said in State v. Duff, 253 Mo. l. c. 423, as to the dual attitude occupied by the prosecuting attorneys of the State:

“Questions so clearly incompetent, so verging upon unfairness and so hurtful withal ought not to be asked by any prosecuting attorney. It is the duty of this officer to see to it that the defendant shall have a fair and impartial trial, and that he shall not he convicted by incompetent evidence. [People v. Carr, 64 Mich. 702; People v. Derbert, 138 Cal. 467.] The attorney for the State owes a duty to the State to see that justice is meted out, and to the defendant, that he be given a fair and impartial trial; he cannot square these duties with the act- of presuming upon or taking an advantage of his opponent’s lack of information touching the technical details of the criminal law. There is much of respectable authority holding that while great allowance will he made by the courts for that zeal which is the natural growth from a hard-fought legal contest, yet if such zeal shall so outrun discretion as to trench upon unfair, oppressive and unjust methods, the court may on this ground alone reverse. [12 Cyc. 571, and cases cited.] ”

The defendant is, we assume, since the record discloses neither supersedeas bond nor order, now confined in the penitentiary, where he has been more than a year, pending the perfection by his counsel of this appeal. He should have now but some five months more to serve. It is no material kindness therefore to him, so far at least as imprisonment may produce physical suffering, mental anguish being pretermitted, to reverse this case; but upon the facts wé can neither read the law nor write it otherwise. Let it be reversed and remanded to be retried in accordance with these views.

Walker, P. J., and Brown, J., concur.


author: BROWN, J. WALKER, J.

text:
    THE STATE v. HUGH WASHINGTON, Appellant.
    Division Two,
    June 23, 1914.
    1. FORGERY: Information: Trust Company: No Allegation That It is a Bank. An information charging that defendant forged “a certain false, forged and counterfeit cheek, purporting to he . . . drawn on the Citizens Trust Company, duly organized under the laws of the State of Missouri, and doing a general trust and banking business,” does not charge that the Citizens Trust Company is an incorporated bank, and for that reason is not a sufficient charge of forgery under Sec. 4643, R. S. 1909.

      Meld, by WALKER, P. J., dissenting, that the allegation that the said company is “duly organized under the laws of the State of Missouri” is an allegation that said company is organized as a corporation, and that the further allegation that it is organized “to do a banking business” means that the company was a bank, and the information. is, therefore, sufficient.
    2. BILL OF EXCEPTIONS: Filing: Notation by Clerk. For the reasons stated in State v. Prince, 258 Mo. 315, it is held that a notation made by the clerk upon the record proper showing that the bill of exceptions in the cause was filed, is sufficient evidence of its filing.
    3. FORGERY: Check: Incorporation of Drawee: Evidence. To establish forgery under Sec. 4643, R. S. 1909, it must be proved that the institution upon which the check was drawn was incorporated.
    4. -: Informalities Not Affecting Substantial Rights. It is a substantial difference to defendant whether he be convicted of forgery in the second or forgery in the third degree; and where he is charged with forgery in the second degree under Sec. 4643, R. S. 1909, the proof and the charge must bring his offense within the purview of that section, and it is not sufficient to simply prove that he forged a check.
    Appeal from Cooper Circuit Court. — Eon. J. G. Slate, Judge.
    Reversed and' remanded.

      W. Hall Trigg for appellant.
    (1) Words of a statute which are descriptive of an offense — a part of the statutory definition — cannot be omitted from an information founded thereon without fatally vitiating such information. 19 Cyc. 1393; State v. Plesseltine, 130 Mo. 468; State v. Minton, 116 Mo. 605; State v. Pickett, 174 Mo. 663. Sec. 4643, R. S. 1909, under which the information was drawn, describes an offense wherein one of the elements thereof is that the check be drawn on an “incorporated bank.” The information is wholly wanting' in any such averment, -and, is, therefore, fatally defective. Com. v. Simonds, 11 Gray (Mass.), 306; Kennedy v. Com., 2 Mete. (Ky.) 36; Com. v. Lee, 37 S. W. (Ky.) 72; Benson v. State, .124 Ala. 92; Stone v. State, 20 N. J. L, 401; Benson v. State, 5 Minn. 19; State v. Brown, 4 R. I. 528. (2) Failure in proof of a constitutive element of an offense is reversible error. Likewise are instructions which omit such element. (3) It is the duty of the court to instruct on matters of defense where there is evidence tending to sustain them. In a criminal case so imperative is the rule that it becomes the court’s duty sna sponte. State v. Harris, 134 S. W. (Mo.) 535'; State v. Brown, 104 Mo. 565; State v. Lewis, 69 Mo. 94; State v. Fox, 148 Mo. 517; State v. Koplan, 167 Mo. 298.

      John T. Barlter, Attorney-General, and 8. P. Hoivell for the State.
    (1; A bill of exceptions filed in vacation must bear on its face the clerk’s certificate attesting that fact and the date thereof, or an entry appear in the record proper to that effect, in order that matter of exception may be considered on appeal. When a bill is filed in vacation it must bear the certificate of the clerk that it was allowed, signed, filed and made a part of the record in the cause, or an entry equally as full must appear in the record proper. In this case the bill does recite over the signature of the trial judge that the defendant tenders this his bill of exceptions and prays that the same may be allowed, signed, sealed, filed And made a part of the record herein, which is accordingly done,” but this alone is not sufficient. That means merely that the bill has met the approval of the judge, and that he orders the same to be filed, but there must in addition appear on the bill itself a certificate of the clerk that the order has been executed and the bill in fact made a part of the record. Lafolette v. Thompson, 83' Mo. 199; County v. Cunningham, 101 Mo. 642; State v. Eolley, 135 Mo. 677; State ex rel. v. Broaddus, 207 Mo. 107; State v. Borders, 228 Mo. 478; Langstaff v. Webster Groves, 246 Mo. 223; Alt v. Dines, 227 Mo. 422. (2) The information substantially follows the language of the statute and the approved forms, and is, therefore, sufficient. It charges with precision the elements and facts necessary to constitute the crime of forgery. It fully informs the defendant of the exact nature of the accusation made against him, and more than that is not required. No motion to quash was filed, the information being attacked for the first time in the motion in arrest. Sec. 4643, E. S. 1909; State v. Yeager, 86 Mo. 37; State v. Willard, 219 Mo. 721; State v. Willard, 228 Mo. 335; State v. Shields, 89 Mo. 259; Sec. 5115, E. S. 1909; State v. Ware, 62 Mo. 600; State v. Watson, 65 Mo. 118; State v. Dengolensk'y, 82‘Mo. 44; State v. Mills, 146 Mo. 206; State v. Harroun, 199 Mo. 525; State v. Staildifer, 209 Mo. 272; Hurt v. Salisbury, 55 Mo. 310. (3) Where there is any substantial evidence offered on the trial tending to establish the guilt of the defendant as charged, this court will not interfere with the verdict reached. State v. Tetrick, 199 Mo. 104; State v. Sassman, 214 Mo. 738; State v. Sharp, 233 Mo. 298; State v. Concelia, 250' Mo. 424; State v. White, 251 Mo. 178.
   BROWN, J.

Convicted of forgery in the second degree and his punishment fixed at five years in the penitentiary, defendant appeals.

For reversal defendant challenges the information, and also the sufficiency- of the evidence to support the verdict.

The information is founded upon section 4643, Revised Statutes 1909', prohibiting the forging of the name of any individual to a check upon an incorporated bank, and (omitting caption, signature and verification) is as follows:

“Daniel W. Cosgrove, prosecuting attorney within and for the county of Cooper, in the State of Missouri, on Ms official oath of office and upon Ms knowledge, information and belief informs the court that at the county of Cooper, in the State of Missouri, Hugh Washington, on or about the 14th day of January, 1914, feloniously did forge, counterfeit and falsely make a certain false, forged and counterfeit check, purporting to be made by Harry White, and the said check purporting to be drawn on the Citizens Trust Company, duly organized under the laws of the State of Mis- . souri, and doing a general trust and banking business, which said false, forged and counterfeit check is of the tenor following:

No. -

Boonville, Mo., Jan. 14, 1914.

THE CITIZENS TRUST COMPANY

IPay to John Washington........................OR BEARER $3.00

Boonville Bank _Dollars

100

Harry White.

“With intent then and there and thereby feloniously to injure and defraud, against the peace and .dignity of the State.”

I. Defendant asserts that the information does not charge that the Citizens Trust Company is an incorporated bank. This contention seems to be well taken. The forging of orders and checks by an individual is prohibited by two different statutes. Under section 4643, Revised Statutes 1909, it is made forgery in the second degree, while by section 4651, the forging of a check (any instrument or writing) which does not come within the purview of section 4643, supra, is made forgery in the third degree.

Section 4643, supra, is a criminal statute, and, in order to sustain a conviction under its provisions, it is necessary to allege that the institution upon which the check was drawn is incorporated, and it is also necessary to charge that it is a bank.

The Attorney-General insists that the information is sufficient, because it charges that the Citizens Trust Company “is duly organized under the laws of Missouri, and doing a . . . banking business.” This insistence cannot be sustained. If we could hold, without doing violence to the law, that the words “duly organized under the laws of Missouri” were a sufficient allegation that the Citizens Trust Company was incorporated, we are still confronted with a more serious difficulty—there is no allegation that it is a bank —the averment that it is doing business as a bank is insufficient. That a corporation does business as a bank does not make it a bank within the purview of section 4643, supra, which designates only incorporated banks.

Section 4643, supra, is a criminal statute, and, according to all the canons for construing that class of laws, its provisions cannot be expanded to embrace those who forge checks on an institution which acts like a bank, or does the same kind of business as a bank, but which is not in fact a bank. [State v. Koock, 202 Mo. 223, l. c. 235; Kansas City Loan Guarantee Co. v. Kansas City, 200 Mo. l. c. 167; and State ex rel. Spriggs v. Board of Health, 253 Mo. 271.]

In the case of State v. Kelsey, 89 Mo. 623, it was held by this court that a private banker, though doing the same business as an incorporated bank, was not within the purview of a statute leveled only against the officers of any “banking institution.” In State v. Reid, 125 Mo. 43, it was held that the officers of a trust company were not within the purview of a statute which did not specifically designate the officers of trust companies, notwithstanding it was shown that the officers of such trust company were in fact doing a banking business. It is needless to multiply authorities upon such a plain proposition. The information was fatally defective, and we must so hold.

II. The Attorney-General insists that the alleged errors noted in the bill of exceptions are not before us for review, because the only evidence furnished us- by the clerk of the trial court that the bill' was filed and made a part of the record is a mere notation made by him upon the record proper showing that it was filed in this cause. This point was ruled adversely to the Attorney-General’s insistence in the case of State v. Prince, 258 Mo. 315.

III. If the information was legally sufficient, the State would encounter a still greater difficulty on the evidence. The record does not contain one word of evidence tending* to prove that the Citizens Trust Company was ever incorporated, or that it was reputed to be incorporated, or that it had ever exercised the functions of a corporation (Sec. 5238, R. S'. 1909), nor is there any evidence that It was even organized (whatever that word may be held to mean).

IV. But, says the Attorney-General, the evidence shows that the defendant forged the check described in the information, and that legal errors stud. iniormaiitiGS not niiGcting Jus substantial rights should not be permitted to thwart his punishment. We are convinced, however, that it would make quite a difference to defendant whether he should be convicted of forgery in the second degree (which, according to the information, he did not commit), or the crime of forgery in the third degree, or some other crime which he may have committed. In the recent case of State v. Willard, 228 Mo. 328, a judgment was reversed because defendant was convicted of forgery in the third degree under an information which charged him with forgery in the second degree.

For the insufficiency of the information and the want of evidence to support the verdict, the judgment is reversed and the cause remanded.

Paris, J., concurs ; Walker, P. J., concurs in result in opinion filed.

SEPARATE OPINION.

WALKER, J.

We concur in the result reached In the majority opinion, but dissent from the holding therein that the information is insufficient . . m not properly charging that the Citizens Trust Company is an incorporated bank.

The information does charge that the. company “is duly organized under the laws of the State of Missouri and is doing a general trust and banking business.” It is in our opinion too plain for further words that the company could not have been organized under the laws of the State except as a corporation. The words “organized under the laws of the State” can have no other meaning; if so organized “to do a banking business,” it must perforce have been a bank; the words employed, therefore, in the information are not only similar in import but identical in meaning with, the words held to have been necessary by the majority opinion; this being true, the requirements as to the specific nature of the charge necessary to be made in criminal cases is fully met, and the-defendant has no just grounds of complaint, as he is-as fully and clearly informed of the nature of the-charge against him as if other and different words, had been used.

It, therefore, follows that the information is sufficient, and the judgment of the trial court should not be reversed on this account.


author: ROY, C.

text:
    THE STATE v. GEORGE BONNER, Appellant.
    Division Two,
    June 23, 1914.
    1. ALIBI: Instruction: Homicide. An instruction that if there-he any evidence before the jury that raises in their minds a reasonable doubt as to the presence of the defendant at the time and place where the crime is charged to have been committed (if they find a crime was committed) they should, acquit, is held to be clear and complete, and as definite and. forcible as it was proper to mate it.
    2. MURDER: Evidence: Identity of Murderer. A murder was; committed at 5:40 p. m., December 1, 1911, in a room in which-there were six sixteen-candle-power incandescent shaded lights, some of them as high as a man’s head and some lower. Near the door was another light unshaded. Two of those present in. the room identified the defendant as one of the murderers. Held, sufficient evidence as to defendant’s identity.
    Appeal from Jackson Criminal Court.- — Hon. Ralph S~ Latshaw, Judge.
    Affirmed.

      W. M. C. Smith for appellant.
    The State must identify the person on trial as the person wbo actually committed the crime, and beyond" a reasonable doubt. Williams v. State, 130 Ala. 31; State v. Jones, 71 Mo. 591. The burden of proof is on the State. State v. Hardelein, 169 Mo. 579;. State v. Hickman, 95 Mo. 322; State v. Wingo, 66 Mo. 181. In order to sustain a conviction of a defendant charged with being present at the time and place of the crime charged the State must absolutely prove that he was there as part of its case, and if from all the-evidence there exists a reasonable doubt of his presence he should be acquitted. State v. Tatlow, 136 Mo.. 678; State v. Harvey, 131 Mo. 339; State v. Powers,. 130 Mo. 475; State v. Taylor, 118 Mo. 153; State v. Wooland, 111 Mo. 248; State v. Howell, 100 Mo. 628.. It is improper to urge that the mere omission of a. defendant to take the stand as a witness in his own behalf constitutes the slightest presumption of guilt.. Com. v. Hanley, 140 Mass. 457; United States v. Pendergast, 32 Fed. 19. It is contended and urged that such a conviction as was had herein was a gross violation of the defendant’s constitutional rights. Sec. 30. art. 2, Constitution of Missouri. It is contended and urged on behalf of the defendant that the instructions, to the jury herein should have been such as to more definitely and forcibly direct the attention of the jury to the evidence of the defendant’s alibi herein; and that there is no evidence or at least a sufficiency of it. to sustain the conviction of the defendant had herein— otherwise “Twould be recorded for a precedent, and many an error thereby would creep into the State — it cannot be.”

      John T. Barker, Attorney-General, and Ernest A. Green, Assistant Attorney-General, for the State.
    (1) The only assignment of error contained in the motion for a new trial is that the verdict is against •the weight of the evidence. In view of the testimony in this case this assignment seems-to hardly need discussion. It is for the jury to settle any conflict in the testimony, and although the verdict convicts the defendant of murder in the first degree, yet, if the evidence is substantial, the Supreme Court will not disturb the verdict on the ground that it is insufficient or against the weight of the evidence. State v. Rumfelt, 228 Mo. 443; State v. Miller, 188 Mo. 379; State v. McGee, 188 Mo. 409; State v. Leabo, 89 Mo. 255. The-evidence in this case as to the defendant’s guilt of murder in the first degree is as strong, if not stronger than that contained in any of the published reports of other murder cases. He is positively identified by at least two disinterested witnesses as one of those who committed this deliberate murder, while a third disinterested witness testified as to the defendant’s admission that he was one of the parties to the crime. This statement of the witness, Langford, was not denied by the defendant and consequently this court should now regard the same as true. State v. Larkin, 250 Mo. 218. The fact that the defendant did not actually fire the shot which killed Underwood is, of course, wholly immaterial. One who is present aiding and abetting others in the perpetration of an offense is guilty as a principal in the crime, although he did not personally participate in its commission. State v. Nelson, 98 Mo. 414; State v. Miller, 100 Mo. 606; State v. Brown, 104 Mo. 374; State v. Crab, 121 Mo. 554; State v. Porsha, 190 Mo. 331; State v. Walker, 98 Mo. 95; State v. Mittner, 247 Mo. 577. In the Crab case, supra, it was held that one who is present at the forgery of a deed, knowingly aiding, abetting or assisting such forgery, is guilty as a principal, although the act of signing the name with intent to forge the same was done by another person. State v. Peebles, 178 Mo. 484. The general doctrine upon this subject is laid down in 12 Cyc. 186, as follows: “All persons who are actually or constructively present at the time and place of a crime, and who either actually aid, abet, assist or advise its commission or are there with that purpose in mind, to the knowledge of the party actually committing the crime, are guilty as principals in the second degree, although they did not themselves accomplish the-purpose. Some aiding or abetting is essential, but mere encouragement is enough. Any action or gesture or utterance of advice, or incitement by one present, in aid or encouragement of the commission of a crime, will make him a principal in the second degree. ’ ’ Applying these authorities to the testimony in this case, the conelusion is unavoidably reached that the conduct of appellant in aiding and abetting Arthur Brown in the murder of Albert Underwood was such as to make him equally guilty with Arthur Brown. The verdict is amply supported by the evidence.' (2) Instruction numbered nine, with reference to alibi, was expressly approved in the Arthur Brown case. State v. Brown, 247 Mo. 727.
   ROY, C.

Defendant was convicted of murder in the first degree and his punishment fixed by the jury at death.

Arthur Brown was convicted of killing Albert Unf derwood and his sentence was reversed by this court, 247 Mo. 715.

Defendant was charged with the same murder. The killing occurred in the cashier’s office of the freight department of the Missouri Pacific Railway Company in Kansas City, at about 5:40 p. m. of Friday, December 1, 1911. At that time there were six men in the room occupied by Underwood. There were six sixteen-candle-power incandescent lights in the room, over which were .cone-shaped shades to throw the light down upon the desks of the men at work. There was another light, without a shade, in the hall in front of the door leading into the cashier’s office. John R. Barnes, an assistant cashier, sat at a desk which was within two feet of the door. Pie heard the door open, and, looking np, saw two negroes standing in the door with drawn revolvers, and one of them (Brown) said, “Get into the vault and get in there quick,” and jumping behind Barnes’s chair, fired a shot at him, burning his neck, shooting through his shirt, and setting fire to it. He then struck Barnes over the head. Barnes stumbled out of his chair and ran into the vault. Barnes testified that the other man in the door was the defendant, and that defendant kept his gun on the other men in the office. As to defendant’s identity he testified as follows :

“Q. Who was this other man who had his pistol leveled at the other boys? A. It was George Bonner, the defendant in this case.
"Q. Are you certain in your identification of him? A. Yes, sir.
"Q. Is there any possibility of a mistake on your part? A. I think not.
"Q. That this is the man? A. No, sir.”

He testified that after getting into the vault he heard another shot and Underwood said, "Por God’s sake give a man a chance to get into the vault.” Then another shot was fired, and Underwood went into the vault saying, “Boys, I have been shot.” He died of Ms wound about eight o’clock the next morning. Barnes testified that there was another negro in the hallway, and that he did not previously know the defendant; that he passed right by defendant when he (witness) went into the vault, and that there was a light within four feet of defendant; that some of the lights were about as high as one’s head, and some not quite so hig’h. He testified that he recognized the defendant four days later at the inspector’s office. On his cross-examination the following occurred: “Q. Mr. Barnes, would you state positively under oath, without any manner of a doubt whatever, taking time to consider the answer to the question, would you swear absolutely and positively and finally and without any hesitancy or pretense of a doubt, that the man whom you saw accompanying the murderer was this man sitting at the table? A. Yes, sir.”

The robbers got $136.75 in cash, and $958 in checks.

John R. Clayton, a collector for the company, was standing in the cashier’s office, and, hearing a shot, turned to the door and saw the defendant about two feet inside with his pistol leveled on the witness. Arthur Brown was near Barnes’s desk and shot at Underwood. Witness than ran into the wareroom. The vault and wareroom were across an intervening room from the cashier’s office. Clayton testified that he had never seen defendant before, and that he saw him again the following Monday at the detective office* He also testified that the lights in the room had shades throwing the light on the desks and leaving the rest of the room and the door in shadow.

Homer Langford, a colored man, whose real name is Weadon, who stated that he had for several years made his living by boxing, testified that on the morning after the killing he talked with defendant at a saloon, when the defendant said that he had “made a freight house last night” and had gotten a hundred and thirty-one dollars and a thousand dollars in checks, and had burned the checks; that about four that afternoon defendant showed him a paper and said that all he hated about it was that the fellow had died. He testified that defendant gave witness a dollar. This witness could not tell how many drinks he had taken that day, but said that he was not drunk. He had known the defendant in Omaha. After the killing of Underwood and prior to the trial, the witness had been stabbed in a fight over a woman. Officer Carter who arrested the defendant testified that defendant endeavored to avoid arrest.

Faulkner Gibbs testified that he roomed with defendant at 622 Bank street, and that they were both in their room from four until about 7:15 p. m. on the-day of the killing of Underwood. TMs witness was arrested on December 3, at the same time that defendant was arrested, and was in the workhouse until brought to the court as a witness in this case. He pleaded guilty to petit larceny in Omaha.

Featherstone Powell and Arthur Brown, both of whom were indicted for complicity in the killing of Underwood, testified that they had never known the defendant. Brown was under sentence of death at the-time he testified.

The instruction on the subject of alibi is as follows:

“The court instructs the jury that if there is any evidence before you that raises in your minds a reasonable doubt as to the presence of the defendant at the time and place where the crime is charged to have-been committed (if you find a crime was committed) you will acquit the defendant.”

The only complaint made, by counsel for defendant about the instructions is that the one on the subject of alibi should have more definitely and forcibly directed the attention of the jury to the evidence on that subject. The one given was dear and complete, and was, therefore, as definite and forcible as it was proper to make-it. There is no point made on the admission or rejection of testimony.

The main proposition contended for by defendant’s counsel is that the evidence as to the defendant’s identity is not sufficient. It is asserted that the evidence shows that there was not light enough in the-room to enable the witnesses to see the-defendant with sufficient clearness to identify him. With six sixteen-candle-power incandescent lights burning in the office, shaded though they were, and with another lamp in the hall just back of defendant as he stood in front of the open door, it would be strange indeed if the witnesses in the room could not clearly recognize the defendant. Two of these men who were there present testified that they identified the defendant as the same man who stood just within the door. The arm of the law would be weak indeed if the oaths of two eyewitnesses were insufficient in such a case.

Counsel for defendant has much to say in depreciation of the State’s witness Langford, alias Weadon, and in appreciation of defendant’s witness Gribbs. There was nothing in the record of either of them to .give them a very high standing with the jury, who, doubtless, convicted defendant mainly on the evidence -of Barnes and Clayton.

The defendant was convicted as the result of a trial remarkably fair and free from error of any kind.

We affirm the judgment and direct that the sentence pronounced by the trial court be executed.

Williams, C., concurs.

PER CURIAM. — The foregoing opinion of Roy, C., is adopted as the opinion of the court.

All of the .judges concur, except Faris, J., not sitting.