State v. Adamson
|346 S.W.2d 85
|08 May 1961
|No. 48011,No. 2,48011,2
|STATE of Missouri, Respondent, v. Roy Lee ADAMSON, Appellant
|United States State Supreme Court of Missouri
James J. Rankin, St. Louis, for appellant.
John M. Dalton, Atty. Gen., John C. Baumann, Asst. Atty. Gen., for respondent.
Defendant was found guilty by a jury of the forgery of a check. The court, finding that he had been convicted and imprisoned for prior felonies, sentenced him to a term of ten years in a correctional institution. Much of the State's evidence came from two men who admitted participation in the preparation and passing of the series of checks out of which the present charge arose. One of these was Moss Edward Shoemaker; the other, Albert Wendell Hall. Shoemaker lived in Mexico, Missouri; Hall in St. Louis.
The evidence was such that the facts now related could be found therefrom. Shoemaker and one John Gilman had met in the penitentiary; later both worked for a time in 1957 for a contractor at Montgomery City, Missouri, by the name of John R. Burton; they were paid by checks. Both of them had known defendant Adamson in St. Louis, where the latter's mother operated a tavern. In May 1958, defendant, Gilman and Shoemaker were together at this tavern and there either defendant or Gilman introduced Shoemaker to Albert Hall, who was a musician in the tavern. One of them then stated that Hall was 'good at putting down checks.' The subject of checks was discussed further and someone produced a check stub of John R. Burton; defendant examined this and talked about the paper. At defendant's request, Shoemaker and Gilman drove to Poplar Bluff, met defendant there, and picked up a portable printing press, a check protector and a heavy suitcase which defendant had stored there in a garage. They then brought these things to Mexico, where they put them in a storage space or room over a garage, at a location where Shoemaker was helping a man build a house, and where he had some of his personal things stored. A little later, defendant came there from St. Louis and the three, defendant, Shoemaker and Gilman, got out these articles, took them to a room of the house, and printed approximately fifty check forms purporting to be drawn on the Mexico Savings Bank, and in the likeness of those used by John R. Burton, with Burton's name printed thereon in two places. Defendant brought the paper, set the type and operated the press. These three talked about the cashing of the checks and decided that it should be done in Mexico; defendant went back to St. Louis and the other two saw him there later on one or more occasions, and discussed further the cashing of the checks. Defendant told them that Hall would pass the checks. On or about June 19, 1958, defendant instructed Hall to go to Mexico, that night if possible, to meet Shoemaker and Gilman 'to pass some bogus checks.' He also told Hall that it 'would be easy.' On June 19, 1958, defendant told Shoemaker by phone that Hall would be in Mexico the next morning. Hall came there, made contact with Gilman and Shoemaker, having gotten Shoemaker's phone number from defendant. Hall was taken to a place outside of town where Shoemaker was staying, and Hall there filled in dates, names and amounts in ink on sundry of the 'Burton' checks, perhaps about twenty-five. One of the other two present used the check protector in each instance to insert, in words, the exact amount of the check. Most of these checks were written for $74.46, payable to a 'Carl R. Smith.' Defendant was not present at this time. The checks were signed in the name of Pearl Thompson (underneath Burton's printed name), a person who actually signed Burton's authentic checks. After this task was completed, the three went into Mexico, where Hall went to various places of business, purchasing a small amount of merchandise, paying for it with one of the checks, and receiving the balance of the stated amount in cash. The check specified in the present information was passed at the Bealmer Feed and Seed Store to purchase $2.05 worth of dog food and to receive the balance of $72.41 in cash. It was offered and received in evidence as State's Exhibit 1. Several of the other checks were also received in evidence, as identified by one or both of the participants and by the persons who received them. After this escapade was completed, late in the afternoon, the three drove out on a country road and divided the money into four 'stacks.' There is some inconsistency in the testimony about the division of the money but that is immaterial here. Hall proceeded back to St. Louis. The Bealmer check was recognized at the bank as a forgery and it was not paid.
Both Hall and Shoemaker admitted previous felony convictions. Hall was confined in the Algoa Reformatory at the time of trial and was brought from there to testify. Shoemaker admitted that there was a case pending against him growing out of the present transactions and that he thought he might get some benefit from testifying; Hall insisted that he did not know definitely whether such a case was pending against him or not, but he 'assumed' that there was; he indicated also that he hoped for some benefit from his testimony. It is apparent, however, that the jury chose to believe the essentials from the testimony of these witnesses. The trial court, out of the presence of the jury, heard evidence of defendant's prior felony convictions and made a finding of three; these were: (1) Burglary and Larceny; (2) Forgery, second degree; (3) Obtaining money by means of a bogus check.
No brief has been filed here for the defendant. He was ably represented at the trial. We shall consider the assignments raised in the motion for new trial. Two of these consist of assertions of error in the overruling of defendant's oral motions for acquittal. Defendant was charged with acting in concert with the three previously mentioned persons, willfully, feloniously and with intent to defraud, in the commission of forgery (more specifically described in the information as in Sec. 561.011, RSMo 1959, Laws 1955, p. 505, V.A.M.S.). It is entirely obvious here that forgery was committed, and there was substantial evidence to show that defendant was a party thereto. The point merits no further discussion.
It is contended that because the offense was committed prior to the effective date of our present Second Offense Act, Sec. 556.280, RSMo 1959, V.A.M.S. 1 the provisions of that Act permitting the court to fix the punishment were applied ex post facto. The trial court proceeded under the new Act, and properly so, for this court has held that the change thus made was procedural, that the new Act might properly be applied upon trial for an offense committed before its effective date, and that no constitutional rights of a defendant were thus violated. State v. Morton, Mo., 338 S.W.2d 858; State v. Griffin, Mo., 339 S.W.2d 803. We note with some interest that when this objection was made at the trial, the court, allowing considerable latitude, offered to submit the question of prior convictions to the jury 'under the old law'; but counsel rather emphatically declined this offer, taking the position that the old law had then been repealed and that no habitual criminal act was applicable.
Two of the other assignments may be considered together; they assert error in receiving evidence of other crimes than the one charged in the information, and in refusing to declare a mistrial therefor or to instruct the jury to disregard the testimony. The evidence complained of is that showing the printing of 'about fifty checks,' and also evidence identifying State's Exhibit 1 as one of those so printed. The facts of this case are such that it would have been physically impossible to show the printing, preparation, and writing of the check described in the information without showing the general activity involving the group of checks. The State is not to be penalized if parties so entangle their illegal affairs that one offense cannot be proved without also proving others. In State v. Scown, Mo., 312 S.W.2d 782, after discussing the general rule rendering proof of some other crime inadmissible, we said at loc. cit. 789: * * *' ...
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...mentioned in the indictment. See generally the discussion and the factual situation in State v. Scown, supra. See also State v. Adamson, Mo., 346 S.W.2d 85; and State v. Burnett, Mo., 429 S.W.2d 239. We find no prejudicial error in the admission of this Over the objection of defendant, the ......
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...testimony, and we reverse for error in such instances only where we can find that the court has abused its discretion. State v. Adamson, Mo., 346 S.W.2d 85, 88(5) and cases there cited. The trial judge sustained the objection and instructed the jury to disregard the answer. He was in a bett......
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...other, such other offenses are widely held under these circumstances to be admissible in proof.' The language used in State v. Adamson, Mo.Sup., 346 S.W.2d 85, at 88, is appropriate here: 'It would be difficult to conceive of a better example of a 'common scheme' than was shown here in the ......