After two mistrials appellant was convicted upon the third trial, under the second count of an information in accepted form, charging him *Page 628 with the crime of uttering a forged note, in violation of the provisions of Section 4656, Revised Statutes 1909 (Sec. 3441, R.S. 1919), and after unsuccessful motion for a new trial was sentenced on the verdict of the jury to imprisonment in the State Penitentiary for a term of three years, and has appealed.
Defendant gave two notes, for value received, to the Peoples Bank of Aurora, Lawrence County, Missouri, for $2000 and $500 respectively. The information is based on the $2000 note. The alleged forgery is as to the signatures on said note of his sureties, Geo. Swindle and Mollie Swindle. Mrs. Swindle was the sister of defendant.
The alleged uttering is charged to have occurred as of the date of the note, October 29, 1906. The alleged forgery of the signatures of the sureties was not discovered for some months, and not until after one or more renewals of the notes by the defendant. When presented to the Swindles for payment, they denounced their purported signatures as forgeries. It appears a suit on the notes was brought by the bank against the Swindles, which was unsuccessful.
Some time in the fall of 1908, and about two years after the delivery of the notes in controversy to the bank by the defendant, he left the State of Missouri and thereafter remained out of the State until he was brought back in August, 1916, by a detective named L.A. Woodley, who found him living at Granger, Washington, under the name of C.C. Hardcastle. It appears that defendant was brought back to Missouri on some charge other than the one in the case now before us. At the trial the defendant introduced testimony of his previous good character. Other facts necessary to the proper understanding of the assignments of error will be recited in the opinion.
I. The first question presented is whether the prosecution in this case is barred by the Statute of Limitations, which provides that prosecutions in this character *Page 629 of cases must be commenced within three years afterLimitations. the commission of the offense, as provided by Section 4945, Revised Statutes 1909 (Sec. 3737, R.S. 1919).
The prosecution is clearly barred, unless the total elapsed time that defendant was in Missouri, from October 29, 1906, the date of the commission of the alleged offense, to September 10, 1917, the date the information was filed, is within the period of three years prescribed by the statute above referred to. The time defendant was out of the State is not considered in making this calculation. [Sec. 4947, R.S. 1909; Sec. 3739, R.S. 1919.]
There is a sharp conflict in the testimony of the witnesses, both as to the date of defendant's departure from Missouri, and as to the date of his return to this State. Much of the testimony on the part of the State is vague and uncertain. In the view we take of the matter it is not necessary to review this testimony. Counsel on both sides agree on October 29, 1906, as the proper date to take for the commission of the offense. It is the date of the defendant's departure from Missouri that is the subject of the greatest conflict in the testimony.
Witness Woodley, the detective who brought defendant back to Missouri, testified that defendant told him he left Missouri on September 15, 1908, and the same witness testified that he returned to Missouri with defendant on August 25, 1916. The defendant fixes the date of the return about August 21, 1916, but such difference is immaterial. The information was filed September 10, 1917. On the basis of Woodley's testimony, we make the following calculation: The elapsed time from October 29, 1906, to September 15, 1908, is one year, ten months and sixteen days, and from August 25, 1916, to September 10, 1917, one year and fifteen days, or a total elapsed time of two years, eleven months and one day. *Page 630
It was the exclusive province of the jury, under the supervision of the trial judge, to determine this issue of fact, which was properly submitted in an appropriate instruction. The jury might have believed defendant's testimony that he left Barry County October 15, 1908, and finally left Missouri in November, 1908. It apparently did not believe it. It had the right to believe Woodley's testimony as to the admission of defendant that he left Missouri September 15, 1908. The finding of the jury concludes the matter.
II. Appellant contends that there is no substantial evidence in the record to support the verdict. We have just pointed out that there was ample evidence that the prosecution was begun within the time prescribed by law. There is evidence thatSufficient the signatures of the Swindles on the note inEvidence. question, purporting to create an obligation for the payment of money, where forged; that defendant knew they were not genuine signatures; that defendant uttered an offered the note to the bank and received value therefor. From these facts the jury was authorized to find an intent on the part of defendant to injure and defraud. The contention is without merit.
III. Error is claimed by appellant because of variance between the allegation of the information that the note in question was uttered to one E.A. Liles, cashier, and the proof which shows delivery of the note to the bank. While this varianceVariance: might be demonstrated to be harmless under the rulingCashier of this court in State v. Allen, 171 Mo. 562, orfor Bank. because such variance was not found by the trial court to be material to the merits of the case or prejudicial to the defense of the defendant under the provisions of Section 5114, Revised Statutes 1909 (Sec. 3907, R.S. 1919), it is not necessary for us so to decide, and we do not do so because we have concluded this case must be remanded for a new trial, for reasons hereinafter stated. The question can and undoubtedly will be avoided upon *Page 631 such retrial by proof in conformity with the charge in the information.
IV. Appellant claims that there is a fatal variance between the note set out in the information and the note offered in evidence as "Exhibit A." It is true that there is a variance.Allegata Whether it is fatal or not, it is unnecessary toEt Probata. decide, because on a retrial of the case the prosecuting attorney, if so advised, may file an amended information to conform to the proof.
V. Appellant contends that error was committed by the trial court in the refusal of testimony offered by him. Witnesses Geo. Swindle and Mollie Swindle had denied their signatures on the note. Geo. Swindle had admitted the existence of great similarity between the alleged forged signatures and the genuine signatures of himself and wife, and that if he had not known the signatures were in fact not placed on the notes by himself and wife, he would have thought they were genuine signatures.
Defendant's counsel asked both George and Mollie Swindle when testifying as witnesses if they had not signed many notes for the defendant and really had no idea how many notes they had signed. The trial court sustained the State's objection to his line of examination and defendant duly offered to make such proof and the offer was rejected. The controversy over this line of cross-examination and the offers of proof by defendant occupy several pages of the record, but we do not think it necessary to set out the same in full.
On the facts in the record before us defendant was clearly entitled to this proof, if he could make it, and, for the purposes of this assignment of error, it must be assumed he could make it. Defendant claimed that his sister and brother-in-law (the Swindles) had previously signed several notes for him, that Mollie Swindle had also signed her husband's name to such notes by his authority, and that when he received from the bank *Page 632 the note in question he sent it to his sister and her husband in the mail and in due time it was returned to him with their purported signatures thereon, and that he took the note to the bank and delivered it, believing it bore the genuine signatures of the Swindles. It was true there was testimony in the record of an admission by defendant that he signed the names of the Swindles on the note himself by the authority of the Swindles. This was denied by defendant on the trial.
Defendant was entitled to have the case fully submitted to the jury upon his theory that the note was in fact signed by the Swindles. In connection with the proof in the record before us of great similarity between the true and the alleged forged signatures of the Swindles and the admission of one of the bank officials, R.D. Liles, that he had testified to the genuineness of the signature of Mrs. Swindle in the suit against the Swindles on the note, the jury might well have believed that the Swindles were mistaken in their testimony that their signatures on the note in question were not genuine, if defendant had been permitted in cross-examining them to show that they had signed a great many other notes for him and really did not know just what notes they had signed. This evidence would have been of great assistance to the jury in determining the weight and credit to give to the testimony of the Swindles.
While the scope of the cross-examination on matters affecting the weight and credit to be given the testimony of witnesses is largely within the discretion of the trial court, the exercise of that discretion should be a sound one, and should not be used to exclude testimony having a direct bearing on an issue of vital importance in the case, such as the genuineness of the signatures of the Swindles on the note alleged to be a forgery. In Underhill on Criminal Evidence (2 Ed.), sec. 221, it is said:
"Where evidence from which an inference unfavorable to the prisoner is given upon the direct examination, everything within the knowledge of the witness and which may raise an inference to rebut, may be brought out on cross-examination." *Page 633
This is true even though the cross-examination be in regard to matters entirely collateral to the issues in the case. While defendant could not have contradicted the Swindles if they had denied having signed so many notes for defendant that they did not know what notes they had signed, he was entitled to that admission from them on cross-examination, if he could secure it. The test as to whether defendant would have been permitted to introduce the testimony on direct examination is only applicable on the question of contradiction of testimony on collateral matters. [30 Am. Eng. Ency. Law (2 Ed.), p. 1102.]
VI. Alleged error in admission of testimony offered by the State and in the giving of instructions need not be noticed here, for such questions will hardly arise on a retrial, in view of our ruling on the record before us.
For the aforesaid errors in sustaining objections to proper cross-examination by defendant of witnesses Geo. and Mollie Swindle, the judgment must be reversed and the cause remanded for a new trial. Higbee, P.J., concurs; Walker, J., dissents in separate opinion.