State v. Dawson

Decision Date05 November 1894
PartiesThe State v. Dawson, Appellant
CourtMissouri Supreme Court

Appeal from Clay Circuit Court. -- Hon. E. J. Broaddus, Judge.

Affirmed.

L. H Waters for appellant.

(1) The indictment is defective and insufficient. R. S. 1889, sec 3126. (2) The circuit court of Clay county had no jurisdiction of the case. The court should have sent "a transcript of the record and proceedings in the cause including the order of removal and the petition therefor." R. S. 1889, sec. 4166. His certificate says: "The foregoing pages contain a full and complete transcript of all entries of record, as also of the indictment of the cause therein cited." (3) The court erred in admitting in evidence the letter from Whalen to the recorder of Lafayette county. It was not shown to have been written by either of the defendants. State v. Minton, 116 Mo. 605. (4) The evidence was not sufficient to warrant a conviction. Cottrell confessed the commission of the forgery yet he was dismissed to become a witness. He was still in jail on two other charges of forgery and the proof shows he was unworthy of belief. His story is simply incredible. (5) The instruction complained of is erroneous. It authorized a conviction on the uncorroborated testimony of an accomplice. 1 Greenleaf on Ev., sec. 380. The instruction fails to distinguish between the testimony of an accomplice and the testimony of any other witness.

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

(1) The letter of July 11, 1893, written by Dawson, and referring to papers connected with the forgery, is competent in every view. The Whalen letter shows the inception and first step in the conspiracy. and was, therefore, competent. Whether Whalen was a myth or was a real person could not affect the admissibility of the letter. State v. Walker, 98 Mo. 95; State v. Crab, 121 Mo. 554; State v. Pratt, 121 Mo. 566. (2) Instruction number 1 for the state declares the law. R. S. 1889, sec. 3661; State v. Stevenson, 93 Mo. 88. (3) Instruction number 2 for the state is copied literally from an instruction approved by this court in State v. Harkins, 100 Mo. 672; State v. Jackson, 106 Mo. 179; State v. Pratt, supra; State v. Crab, supra. (4) Defendant's refused instruction, number 2, does not correctly declare the law as to the testimony of an accomplice, which is properly announced in state's instruction number 2. State v. Harkins, 100 Mo. 672; State v. Jackson, 106 Mo. 179.

OPINION

Burgess, J.

The defendant, Jacob H. Crab, C. C. Pratt and J. H. Cottrell, were jointly indicted at the September term, 1893, of the Jackson county criminal court for forgery in the first degree. A severance was granted, and on the thirteenth day of October, 1893, on application of defendant, a change of venue was granted him to the circuit court of Clay county, where upon trial had at the November term, 1893, 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 indictment is the same that was before this court in State v. Crab, 121 Mo. 554, 26 S.W. 548; and State v. Pratt, 121 Mo. 566, 26 S.W. 556. The facts are the same as disclosed by the record in those cases, and it will serve no useful purpose to repeat them here.

It is insisted that the circuit court of Clay county had no jurisdiction of the case, because the criminal court of Jackson county failed to send a transcript of the record and proceedings in the cause, including the order of removal and petition therefor. It is unnecessary to say more with regard to this contention than that an examination of the record before us shows that it is not borne out by the facts as they appear therefrom. Upon the contrary the transcript of the record of the Jackson criminal court, up to the time of and including the order granting the change of the venue to Clay county is full and complete, and certified in conformity with the provisions of sections 4166, Revised Statutes, 1889.

It is next contended that the court committed error in admitting in evidence the following letter, addressed to the recorder of deeds of Lafayette county, Missouri:

"Kansas City, Mo., May 15, 1894.

"Recorder of Deeds.

"Dear Sir: Please hand this to an abstractor of land titles. What will it cost to make a complete abstract of W. S. Bishop's lands near Bates City, your county? I think they lay three miles S.W. Bates City. The agent did not give me the numbers; 280 acres in one body and 20 acres close to it. Please let me hear from you by return mail.

"Will you make it and send to a bank here for collection? If so let me hear. Mr. Bishop will pay on receipt of abstract. Please send me the numbers of the lands as my party wants to locate the lands on the map.

Yours respectfully,

"John K. Whalen,

"General Delivery. Kansas City, Mo."

The record shows that counsel for defendant objected to the introduction of this letter for the reason that it purports to be from John K. Whalen, and because incompetent, and that the objections were overruled; but it nowhere shows that it was read in evidence, and, as it devolves upon him who asserts error to establish it, which has not been done, we must conclude that the letter was not read. Flynn v Neosho, 114 Mo. 567, 21 S.W. 903. The presumption is always in favor of the correctness of the action of the court. Moreover, even if the letter had been read, it is difficult...

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13 cases
  • The State v. Meysenburg
    • United States
    • Missouri Supreme Court
    • December 16, 1902
    ... ... defendant, there was not one word of caution against Stock, ... the accomplice, and his hearsay testimony as to what was said ... by Kratz and Turner, other accomplices. This was error ... State v. Crab, 121 Mo. 554; State v ... Dawson, 124 Mo. 418; State v. Minor, 117 Mo ... 302; State v. Hawkins, 100 Mo. 666; State v ... Donnelly, 130 Mo. 642 ...          Edward ... C. Crow, Attorney-General, and Joseph W. Folk, Circuit ... Attorney, for the State ...          (1) The ... indictment is ... ...
  • The State v. Tobie
    • United States
    • Missouri Supreme Court
    • November 23, 1897
    ...116 Mo. 505; State v. Allen, 116 Mo. 548; State v. Gullette, 121 Mo. 448; State v. Crab, 121 Mo. 554; State v. Pratt, 121 Mo. 556; State v. Dawson, 124 Mo. 418; State Pierce, 136 Mo. 34. (2) The court erred in refusing to permit the identification of the paper handed to defendant while on t......
  • State v. Bobbitt
    • United States
    • Missouri Supreme Court
    • December 15, 1908
    ... ... State v. Harkins, 100 Mo. 666, 13 S.W. 830, which ... met the approval of this court. An instruction similar in all ... material respects was approved by this court in State v ... Donnelly, 130 Mo. 642, 32 S.W. 1124, and an instruction ... exactly like it was approved in State v. Dawson, 124 ... Mo. 418, 27 S.W. 1104; State v. Crab, 121 Mo. 554, ... 26 S.W. 548; see, also, State v. Jackson, 106 Mo ... 174, 17 S.W. 301, and State v. Woolard, 111 Mo. 248, ... 20 S.W. 27. The case of State v. Hunter, 181 Mo ... 316, 80 S.W. 955, had reference, when rightly understood, ... ...
  • The State v. Cummins
    • United States
    • Missouri Supreme Court
    • July 5, 1919
    ... ... conclusion there reached. To same effect are: State v ... Harkins, 100 Mo. 666, 13 S.W. 830; State v ... Jackson, 106 Mo. 174, 17 S.W. 301; State v ... Woolard, 111 Mo. 248, 20 S.W. 27; State v ... Crab, 121 Mo. 554, 26 S.W. 548; State v ... Dawson, 124 Mo. 418, 27 S.W. 1104; State v ... Donnelly, 130 Mo. 642, 32 S.W. 1124; State v ... Kosky, 191 Mo. l. c 9. The foregoing authorities clearly ... support the action of the court in giving said instructions ...          V ... Appellant's fifth assignment of error, reads as ... ...
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