State v. Crab

• Decision Date: 08 May 1894
• Citation: 26 S.W. 548,121 Mo. 554
• Parties: The State v. Crab, Appellant
• Court: Missouri Supreme Court

26 S.W. 548

121 Mo. 554

The State v. Crab, Appellant

Supreme Court of Missouri, Second Division

May 8, 1894

Appeal from Jackson Criminal Court. -- Hon. John W. Wofford, Judge.

Affirmed.

Arthur S. Lyman for appellant.

(1) The court erred in permitting the Whalen letters to be received and read in evidence over the objection of the defendant. 3 Greenleaf on Evidence [13 Ed.], sec. 92; 1 Ibid., sec. 111; State v. Daubert, 42 Mo. 239; State v Walker, 98 Mo. 95; State v. Melrose, 98 Mo 594; Bedford v. State, 55 N.W. 263. (2) The evidence of Mr. Lesueur and the witnesses Seidlitz and Vincil, after comparison of handwriting in the Whalen letters with a letter not introduced in evidence and not in this case, and which is not admitted by any party to the record, but said to have been written by George W. Dawson, is error. State v Minton, 22 S.W. 808; State v. Scott, 45 Mo. 302; State v. Tompkins, 71 Mo. 614; 1 Greenleaf on Evidence [13 Ed.], sec. 581; State v. Clinton, 67 Mo. 380; Rose v. Bank, 91 Mo. 399. (3) The court erred in permitting the witness Cottrell, who was jointly indicted with defendant, to testify in the case on October 30, 1893. First. Cottrell was not a competent witness until the nolle prosequi was entered and an order made discharging him, of which he had knowledge. R. S. 1889, sec. 4217; State v. Chyo Chiagk, 92 Mo. 395, and cases there cited. Second. It is not the mere fact of his discharge or conviction which makes a jointly indicted accomplice a competent witness; it is his knowledge of the fact. Any other construction of the statute would be absurd and would be against the reason of the rule. State v. Chyo Chiagk, supra. (4) Instruction number 8 given on behalf of the state is misleading, and should not have been given over defendant's objection.

R. F. Walker, Attorney General, and Marcy K. Brown, Prosecuting Attorney, for the state.

(1) The indictment is sufficient, being a literal copy of the form approved by this court in State v. Fisher, 65 Mo. 437; 4 Park. Cr. R. 217; State v. Stewart, 90 Mo. 511. (2) The court properly permitted the Whalen letters to be read in evidence; they were the very basis of the conspiracy leading up to and furnishing a motive for the forgery; they showed defendant's participation in the forgery and the intended fruits of it; they were necessary to explain the subsequent letters of appellant Crab to Lesueur upon the same subjects. (3) For the purpose of showing the existence and purpose of the conspiracy to commit the forgery, the Whalen letters were clearly admissible. State v. Walker, 98 Mo. 95; 2 Bish. Cr. Proc. [3 Ed.], sec. 227; State v. Flanders, 118 Mo. 227; Goetz v. Flanders, 118 Mo. 342. (4) The evidence of Cottrell, Vincil, Seidlitz and Lesueur as to comparisons of handwriting of different letters written by Dawson, for the purpose of showing that Dawson was none other than Whalen, and had written tne Whalen letters negotiating the loan, was competent. (5) The evidence of Cottrell, who was jointly indicted with appellant, was perfectly competent and properly admissible; the court had directed that Cottrell be discharged in order that he might be a witness for the state; this was done, not only before appellant had gone into his defense, but before the trial of defendant had begun. R. S. 1889, sec. 4217. (6) Instruction number 8 given for the state is a proper one, instructing the jury that, if another person than appellant signed Bishop's name with the intent of forging said name to the deed, and that appellant was present knowingly, etc., aiding, etc., in the doing of such act, then they must treat such act as one done and performed by appellant himself. This is a familiar rule requiring no citations to support such a well settled principle. (7) Instruction number 9 given in behalf of the state, concerning which appellant complains, is a proper one and correctly declares the law concerning the testimony of an accomplice; this instruction was literally copied from instructions approved by this court in State v. Harkins, 100 Mo. 672; State v. Jackson, 106 Mo. 179.

OPINION

Burgess, J.

Defendant was jointly indicted in the criminal court of Jackson county with George W. Dawson, C. C. Pratt and J. H. Cottrell on September 24, 1893, for forgery in the first degree, by forging the name of one Wayne S. Bishop to a deed transferring a large tract of land in Lafayette county upon which there was a farm, to Jacob H. Crab. A severance was granted defendant and upon a trial had, he was found guilty, and his punishment assessed at ten years imprisonment in the penitentiary. From the judgment and sentence he appeals to this court.

The facts are that on the fifteenth day of May, 1893, George W. Dawson, under the name of John K. Whalen, wrote a letter addressed to the recorder of deeds, Lexington, Missouri, asking him to hand the letter to an abstractor of land titles, in the same letter asking what a complete abstract of title of Bishop's land near Bates City would cost, stating that Bishop would pay for the abstract. This letter was handed by the recorder to J. O. Lesueur, an abstractor. This letter was requested to be answered to John K. Whalen, general delivery, Kansas City, Missouri. From that time on a correspondence was kept up between Lesueur and Whalen, alias Dawson, until June 9, 1893, when defendant took up the correspondence and continued it until the arrest of all the parties named in the indictment.

Defendant does not seem to have had any connection with his co-indictees in regard to the land until about June 1, 1893, when Pratt approached him and told him about a party who wanted to trade a farm for some wild land and some money, and undertook to arrange the trade. The farm owned by Bishop was a valuable one, worth about $ 15,000, unincumbered, containing about three hundred acres, and being in Lafayette county. The scheme between Dawson, Pratt and Crab seems to have been to forge Bishop's name to a deed for his land, and for that purpose have someone to personate him, then obtain a loan upon the land in the name of the grantee for all or as much money as could be obtained, hence the continued correspondence with Lesueur, who was also a loan agent as well as abstractor. Cottrell was selected as the man to personate Bishop.

Dawson, after negotiating with Cottrell, finally induced him to consent to go before a notary and personate Bishop and sign and acknowledge the deed to Crab. Cottrell met Dawson and Pratt as per agreement the day before the forgery was committed, at a bucket-shop near the notary's office, and they arranged the details of the visit to be made to the notary's office on the following day. Dawson's introduction of Cottrell to Pratt was in these words: "This is the man who is going to play the part of Bishop for us;" whereupon Pratt asked Cottrell: "If he was going to help them out in this little deal?"

On the following day Cottrell again met Dawson and Pratt, by agreement, at the bucket-shop, where, in the presence of both Pratt and Dawson, Cottrell was induced to go into a water-closet and change some of his clothing and put on others brought for that purpose by Dawson, and Cottrell was further disguised by tying a handkerchief over his right eye. Pratt said to Cottrell: "You are all right; they won't know you;" then said Dawson, "I'll go over to see if the way is clear," and left, going across the street; in a short time he came back and said, "everything is all right; take him over and sign up the deed." Thereupon Cottrell and Pratt left for the notary's office, which was in the Sheidley building, an office building at southwest corner of Ninth and Main streets, diagonally across the street from the bucket-shop. The main and public entrance to this building was in front, fronting Main street, where the elevator was; there was also a side entrance on the corner of the alley and Ninth street, not nearly so public, where there was no elevator, but only a stairway to climb. At this side entrance on the alley and Ninth street, Crab, the defendant, by a prearranged agreement, was waiting for Pratt and Cottrell. Pratt's introduction of Cottrell to Crab was in these words: "This is the man that Dawson has got to play the part of Bishop for us." Cottrell said: "This is mighty ticklish business. How about the notary?" to which Crab, the defendant, reassuringly replied to Cottrell that "the notary is all right; we are acquainted with the notary, and we will introduce you as Bishop."

Pratt and Crabb then led the way from the side entrance, climbing the stairs to the office of the notary, an attorney named Thompson; Pratt, in Crab's presence, introduced Cottrell to the notary, Thompson, as Wayne S. Bishop; Cottrell signed Bishop's name to the deed conveying the Layfayette county farm, and acknowledged the instrument.

This deed, which was executed and delivered to the defendant, was mailed by him the next morning to the recorder of deeds of Lafayette county, at Lexington, accompanied by a letter, requesting that it be recorded at once and the original returned to him.

Dawson had, previously to the execution of the forged deed, been trying through Lesueur to effect a loan on the land in the event of his purchase. The latter, not suspecting anything wrong, corresponded with Dawson (as John K. Whalen) concerning the cost of an abstract and the amount of a loan agreeing to loan several thousand dollars on the farm. A number of letters upon this contemplated loan passed between them. On the morning the forged Bishop deed, mailed by Crab to the recorder of deeds at Lexington, was received by the recorder, Lesueur happened to be in the recorder's office, and the original was shown to him. Although Bishop lived in another county, Lesueur had done...