State v. Bywaters
State v. Bywaters
Opinion of the Court
Appellant was charged and convicted in a trial to the court of tendering a “no account” check ($20.00) “willfully, unlawfully and feloniously with intent to cheat and defraud E. H. Young, d/b/a Riverside Red X, a felony.” § 561.450, RSMo 1969, V. A.M.S. The court sentenced appellant to a term of two years’ imprisonment.
It is claimed by appellant that the court erred in overruling his motion for judgment of acquittal because the state failed to prove that E. H. Young, d/b/a Riverside Red X, was the actual party defrauded, as alleged in the information. He says that E. H. Young did not testify at the trial, nor was there any testimony that Young owned Riverside Red X, and that since he was charged with a specific intent crime (to defraud Young) he was in fact convicted of a general intent crime, which amounted to a denial of due process.
The principal case cited by appellant is State v. Samuels, 144 Mo. 68, 45 S. W. 1088, which held that in a prosecution for uttering a forged check, where the indictment alleged the name of the particular person defrauded, the proof must conform to the allegation. The court in State v. Chissell, 245 Mo. 549, ISO S.W. 1066, remarked that the Samuels case was substantially overruled by State v. Sakowski, 191 Mo. 635, 90 S.W. 435, 4 Ann.Cas. 751. There can be no doubt, under very similar facts, that the Chissell case has specifically overruled the Samuels case. There, the information alleged that the check was passed with the intent to defraud George Hoff-berger, but the proof showed that money paid for the check was the property of Fiorita. It was held that it was not an element of the crime denounced by the statute (now § 561.450) that the instrument should have been uttered with intent to defraud some particular person. “All that is required as to the intent in charging an offense thereunder is that the act was done ‘with intent to defraud.’ ” The court further quoted from what is now § 545.170,
The judgment is affirmed.
PER CURIAM:
The foregoing opinion by JACK P. PRITCHARD, Special Judge, is adopted as the opinion of the Court.
Reference
- Full Case Name
- STATE of Missouri v. Robert L. BYWATERS
- Status
- Published