
    THE STATE v. IMBODEN, Appellant.
    Division Two,
    June 12, 1900.
    1. Forgery: indictment: bank draet: sdeeicient description. An indictment for forgery of a draft was sufficient where it recited the payee, amount, and the banks by and upon which it was drawn, and indorsements thereon, followed by a statement that the grand jurors were unable to give a more particular description thereof for the reason that such draft was in the possession of defendant.
    2. -: -: -: -: REVENUE stamp. An indictment for forgery of a draft was not insufficient in that it failed to state that a revenue stamp was affixed thereto.
    3. -: BANK BRAET: evidence: signature. To prove that a name was signed to a forged draft, which was not in evidence, the State introduced a witness, who testified as follows: “As to the signature, I don’t remember. ■ I remember to have remarked that I wished I could have written as smooth a hand as the man in there. The body of the draft was that smooth handwriting. As to the signature and appearance of it as to the handwriting, and the kind of writing, — the penmanship, — I don’t remember. Who signed it I don’t remember.” Held, that the testimony was too vague to establish the fact that there was a signature to the draft.
    Appeal from Jackson County Criminal Court. — Hon.- Jno. ~W. Wofford, Judge.
    REVERSED AND REMANDED.
    
      Hugh 0. Brady and Boyle & Dillard for appellant.
    (1) This evidence does not even tend to prove that the draft was signed at all, much less signed by someone as an .officer of the Harbine Rank. State v. Stowe, 132 Mo. 199; State v. Yerger, 86 Mo. 33; State v. Eay, 65 Mo. 490. (2) Under the rule laid down in State v. Stowe, 132 Mo. 199, this indictment must fall. The witness, Plancock, was before the grand jury; they had an opportunity of eliciting from him a correct description of the draft that they attempted to introduce in evidence; there is no excuse for their failure to have done so. The description as set forth in the indictment, as compared with the description as shown by the evidence, is vague, indefinite and uncertain.
    
      Edward G. Grow, Attorney-General, and 8am B. Jeffries, Assistant Attorney-General, for the State.
    (1) A revenue stamp is not a part of the check or draft; hence, there need be no proof that the check or draft did or did not contain sUch a stamp. The internal revenue law, as it existed at the time this check or draft was forged, and as it exists to-day, contains an express provision that a want of the proper stamp shall in no case cause the document to be held invalid. The revenue stamp clearly forms no part of the instrument, and the omission to describe it constitutes no variance. Miller v. People, 52 N. Y. 304; Gross v. People, 47 Ill. 152; Kelley’s Criminal Law, sec. 797. (2) The indictment does not undertake to set out the forged instrument in haec verba, but simply undertakes to give what it purports to be, and gives as a reason therefor that the instrument is in the possession of the defendant, and a more particular description of said false, forged and counterfeit draft these grand jurors are unable to give. It has been held that under similar statutes to our own, a description that would be good in an indictment for larceny is good in an indictment for forgery, where the instrument is alleged to be in the possession of the defendant. McClain on Grim. Law, sec. 800; People v. Stewart, 4 Mich. 655. In all cases in this State where the Court has held the variance fatal, the grand jurors undertook to set out in the indictment the forged instrument in haec verba, or else the trial judge held the variance prejudicial to the defendant. State v. Eay, 65 Mo. 490; State v. Smith, 31 Mo. 120; State v. Chamberlain, 75 Mo. 382. The trial court is the judge of the question as to whether or not the variance is prejudicial to the defendant. State v. Wam-maek, 70 Mo. 410. Variance in the indictment and proof that is notprejudicial to the defendant are not grounds for a reversal of the verdict and judgment. State v. Lamb, 141 Mo. 302; State v. Clinton, 86 Mo. 376; State v. Meyer, 82 Mo. 561. . '
   SHERWOOD, J.

Charge, forgery in the second degree; result of trial, verdict of guilty as charged in the first count of the indictment and defendant awarded a term of ten years in the penitentiary.

The count referred to is the following: “The grand jurors for the State of Missouri, in and for the body of the county of Jackson, upon their oath present that. Leonard B. Imboden, late of the county aforesaid, on the tenth day of January, 1899, at tbe county of Jackson, State of Missouri, feloniously did forge, counterfeit and falsely make a certain false, forged and counterfeit draft, purporting to be made by tbe Harbine Bank of Fairburg, Nebraska, a bank duly incorporated and existing under and by virtue of tbe laws of tbe State of Nebraska, wbicb said false, forged and counterfeit draft is of tbe purport following:

“ ‘Fairburg, Nebraska, January — , 1899, No.. — .
“ ‘Pay to tbe order of Clark and Cameron Cattle Company, fifteen thousand, one hundred, twelve and 68-100 dollars, and draw on tbe Mercantile National Bank of New York, State of New York,’ and purporting to be signed by -as an officer of said Ilarbine Bank, and purporting to be endorsed by tbe Clark and Cameron Cattle Company, and II. F. Smith, a more particular description of said false, forged and counterfeit draft these grand jurors are unable to give for tbe reason that tbe said draft is in tbe possession of said Leonard B. Imboden, with tbe felonious intent thereby then and there to injure and defraud; against tbe peace and dignity of the State.”

1. Objection is taken to tbe sufficiency of tbe count mentioned. But in consequence of the reasons given in tbe indictment and supported by the testimony, tbe indictment was well enough; tbe law does not require an impossibility, and tbe excuse given in tbe indictment for failure to set forth tbe draft witb more particularity, is sufficient, and this case is unlike that of State v. Stowe, 132 Mo. 199. There, tbe means of information, to-wit, tbe records of Greene county, were open to tbe grand jury; here, there were no such means available.

2. Under tbe authorities, it was not necessary to allege that a revenue stamp was attached to tbe instrument in question. [Kelley Crim. Law (2 Ed.), sec. 797; Miller v. People, 52 N. Y. 304.]

And it bas been decided on several occasions that while Congress may punish for failure to affix a revenue stamp to any given instrument, yet it has not the power to dictate to-the State courts that an instrument unstamped shall not be admitted in evidence. [Cross v. People, 47 Ill. 152; Craig v. Dimock, Ib. 308; Carpenter v. Snelling, 97 Mass. 457; Bumpass v. Taggart, 26 Ark. 398; 2 Bishop New Crim. Law, sec. 540 and cases cited.]

3. The indictment mentions a draft as having been forged; this means, of course, a complete instrument. But in this case there was no evidence that the litigated paper had ever been signed by any one. The testimony having any bearing on this point is that of Hancock, a State’s witness, and the only one who testifies as- to having seen the draft. ITis testimony is the following:

“Q. I will get you to describe as accurately as you can the appearance of this draft, this Harbine draft spoken of?
“A. It was a correspondence draft; it had the New York correspondence printed in the lower hand corner; the writing, of the draft was in a smooth business hand, what I would call a clear Spencerian or business college hand; as to the signature I don’t remember, I remember to have remarked that I wished I could have written as smooth a hand as the man in there, the body of the draft was that smooth handwriting, as to the signature and the appearance of it as to the handwriting and the kind of writing, the penmanship, I don’t remember; who signed it I don’t remember.”

This testimony does not show, except perhaps in a vague inferential manner, that the instrument was signed by any one. Such testimony, to dignify it by such a name, is wholly insufficient to convict a man of forgery, or satisfy a jury of his guilt beyond a reasonable doubt. Forgery can not happen in the case of an unsigned paper. [1 Whart. Crim. Law (10 Ed.), sec. 698 and cases cited.]

However, in State v. Brooks, 92 Mo. loc. cit. 582, 583, 588 (an unsigned .diploma found in -the defendant’s trunk) written by himself, which he had never shown or offered to show any one, was held legitimate evidence that defendant was a forger, although he was being'tried for murder, and the alleged forgery had no imaginable connection with the (crime for which 'he was on trial.) But that case is not law on that point and we will not follow it.

For the error mentioned, we reverse the judgment and remand 'the cause.

All concur.  