State v. Vincent

Black, J.

The defendant was indicted and con *665 victed under section 1388, Revised Statutes, for Laving in Ms possession a forged check, knowing the same to be forged, with intent to utter and pass the same as true and genuine. Numerous objections are made to the record, and what is hereafter said will be in answer to them.

1. The motion to dismiss, on the ground that there was an indictment pending against the defendant for the same cause when this one was found, and which was overruled, is not preserved in any bill of exceptions ; nor does it appear that any exception was taken to the action of the court. It has been several times held that a motion to quash an indictment must be thus preserved, or the action of the court thereon will not be reviewed. State v. Thurston, 83 Mo. 271 ; State v. Gee, 79 Mo. 313 ; State v. Wall, 15 Mo. 208 . With much greater reason should such a motion as this be made a part of the record by a bill of exceptions. It may, however, be stated that the statute recognizes the right of the state to file a new indictment for the same offence, and declares that the one first found shall be deemed to be suspended by the second, and shall be quashed. R. S., sec. 1808. It is a matter of no consequence, in proceedings upon the second indictment, whether the first be in fact quashed or not. State v. Eaton, 75 Mo. 586 .

2. The record shows that the grand jurors were sworn, and, having received their charge, retired to consider, etc., and under a subsequent date it recites : “On this day the grand jury return to the bar, and, through their foreman, deliver the following indictment as a true bill, to-wit.” This shows clearly enough that the indictment was presented by the foreman in open court, and is in full compliance with section 1797, Revised Statutes. It was not necessary that the names of the jurors should be again repeated.

3. The recital in the third count, “and the grand *666 jurors aforesaid, upon tlieir oath, aforesaid,” sufficiently refers to the first count, wherein it is stated that “ the grand jurors of the state of Missouri, within and for the body of the city of St. Louis, now here in court, duly impaneled, sworn and charged upon their oaths present,” etc. The indictment, therefore, shows on its face, not only that the jurors were duly impaneled and sworn, but that they were impaneled and sworn to inquire of oftences within and for the city of St. Louis. Had the indictment failed to allege that the grand jurors were impaneled, sworn, or charged, the omission would not have rendered the indictment invalid. R. S., sec. 1821.

4. It sufficiently appears from the words of the first count of the indictment before quoted, that the city of St. Louis is within the state of Missouri, and the words of the third count, “at the city of St. Louis aforesaid,” show that the offence charged was committed in the state of Missouri. ,

5. The instrument set out in the indictment, both by its purport and its tenor, is in the following words and figures:

“No. 56094. UNION NATIONAL BANK, ,. “New Orleans, February 23, 1884. [

“ The National Parle Bank, New York, — ■

“ Pay to the order of Greorge A. Yincent, sixty-five hundred dollars ($6500).

“S. Chalaron, Cashier.’

It is contended that the instrument is a draft, or bill of exchange, and not a check, as alleged in the indictment. It is an order drawn upon a bank for the payment of a sum certain to a named person, and is payable instantly on demand. In legal effect it purports to be drawn on funds of the maker in the bank. It is, therefore, according to the definition, or description, given by Mr. Daniel, a check. Daniel on Neg. *667 Inst. [3 Ed.] sec. 1566. Had it been drawn by an individual upon a bank, and not by one bank upon another, there could be no doubt but it would be properly designated a check. But it is none the less a check because drawn by a bank. Morse on Banks & Banking [2 Ed.} 164. Such instruments, it is believed, are well known as bankers’ checks.

6. It is true the indictment does not allege that the defendant had endorsed the checks, nor was it necessary that it should have so stated. The statute (R. S., sec. 1388) declares, so far as applicable to this case, that every person who shall have in his possession any such falsely-made, altered, or forged check, knowing the same to be falsely made, altered, or forged, with intent to utter, or pass, the same as true, or to cause the same to be uttered, or passed, with intent to defraud, shall, etc. The offence under this statute was clearly made out without the allegations that defendant had endorsed the check; nor was it necessary to make proof of that fact. Proof that it had been endorsed by the defendant would be strong evidence tending to show an intent to pass, or utter, and to defraud, but that is not the only means by which such proof can be made.

Other matters are urged for a reversal of the judgment, but they are either founded upon a mistake as to what the record shows, or as unsubstantial as those before noted. The judgment is, therefore, affirmed.

All concur.