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.”
*339Information. 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. *340v. 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.
Exceptions. 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.
Evidence 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).
*341Rights. 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.