State v. Arenz

• Decision Date: 23 December 1936
• Docket Number: 34819
• Citation: 100 S.W.2d 264,340 Mo. 160
• Parties: The State v. Sylvia Arenz, Appellant
• Court: Missouri Supreme Court

100 S.W.2d 264

340 Mo. 160

The State v. Sylvia Arenz, Appellant

No. 34819

Supreme Court of Missouri

December 23, 1936

Appeal from St. Francois Circuit Court; Hon. Taylor Smith Judge.

Affirmed.

W A. Brookshire for appellant.

(1) Inasmuch as the State pleaded in detail and verbatim the deed alleged to have been forged by the defendant, the burden was upon the State to furnish strict proof of the contents of the deed, and the failure of the State to prove the contents of the deed alleged to be forged was fatal. State v. Smith, 31 Mo. 120; State v. Fay, 65 Mo. 493; State v. Chamberlain, 75 Mo. 382. (2) The court erred in refusing the instruction in the nature of a demurrer offered by the defendant. First: Because the instrument pleaded in the information, the general warranty deed, was not offered in evidence, and was not strictly proved. State v. Smith, 31 Mo. 120; State v Fay, 65 Mo. 493; State v. Chamberlain, 75 Mo. 382. Second: Because the State failed to prove an intention to defraud, but, in fact, the testimony offered by the State, particularly the testimony of the witnesses, Dewey May and Roy Presnell, negatived an intent to defraud. 26 C. J. 903; State v. Stegner, 276 Mo. 427. (3) Instruction 2 given by the court constituted an error for the reason that there was no testimony upon which the instruction could be based. Cases under Points 1 and 2. (4) Instruction 6 offered upon behalf of the defendant and refused by the court clearly stated the law of the case. State v. Givens, 5 Ala. 747; 26 C. J. 905. (5) The argument of the prosecuting attorney, T. A. Matthews, in which he stated that counsel for the defendant had gone out of the record, and that entitled the State to go out of the record, was improper argument and was prejudicial. It was, also, improper and prejudicial argument to state to the jury that the State could not produce the instrument alleged to have been forged, for the reason that the State had taken no steps to have the document produced. State v. Martin, 229 Mo. 620; State v. Tucker, 234 Mo. 554.

Roy McKittrick, Attorney General, and Wm. Orr Sawyers, Assistant Attorney General, for respondent; Aubrey R. Hammett, Jr., Special Counsel.

(1) The court committed no error in refusing to sustain the following assignments as error in appellant's motion for new trial. Sec. 3735, R. S. 1929; State v. Neely, 56 S.W.2d 67; State v. Sherry, 64 S.W.2d 239; State v. Rosegrant, 93 S.W.2d 973; State v. Dollarhide, 87 S.W.2d 159. (2) Motion not ruled on by the court where no objections is registered or exception saved preserves nothing for review by this court. State v. Sollars, 200 S.W. 1052; State v. Neely, 56 S.W.2d 66. (3) There was sufficient substantial evidence to support a verdict of first degree forgery, hence the demurrer was properly overruled. State v. Mann, 217 S.W. 69; State v. Patterson, 22 S.W. 696, 116 Mo. 513; State v. Eaton, 66 S.W. 539, 166 Mo. 582. (4) Instruction offered by defendant that the purported deed was void and conveyed no title was properly overruled. State v. Evans, 23 S.W.2d 152, 324 Mo. 166. (5) Exhibit A was properly admitted in evidence. State v. O'Kelley, 167 S.W. 980, 258 Mo. 352.

OPINION

Tipton, P. J.

In the Circuit Court of St. Francois County, Missouri, the appellant was convicted of first-degree forgery, in that he forged a deed, and his punishment assessed at ten years' imprisonment in the State penitentiary. From that judgment and sentence he has duly appealed to this court.

On January 16, 1934, the appellant went to the office of C. C. Gower, a notary public in the city of Farmington, Missouri, and represented himself to be Mart Scott, and stated he wanted to convey some property to Hazel Arenz. The appellant brought with him a deed dated July 23, 1925, wherein the Doe Run Lead Company conveyed to Mart Scott, lot 8 in block 14, in the town of Flat River. This was State Exhibit No. 1. Miss Beulah Lindsay was an employee in C. C. Gower's office. She took a blank warranty deed form and filled in the blanks so that the deed conveyed the above-described property to Hazel Arenz. The information necessary to fill out this deed was taken from the State's Exhibit No. 1. The appellant then signed the name of Mart Scott to the deed. After stating that he was single and unmarried, he acknowledged the deed before C. C. Gower.

Dewey May, a deputy sheriff, testified that he arrested the appellant and advised him that he was charged with forging a deed. The witness testified that the appellant admitted that he forged the deed. He also testified that Mart Scott had been dead several years before the date the deed was forged. The appellant's first wife was a daughter of Mart Scott. He further testified that he called the sheriff and prosecuting attorney at the request of the appellant, and in the presence of the three he admitted he forged Mart Scott's name to the deed conveying the property to his second wife, Hazel Arenz and that the consideration recited in the deed was $ 1,250. He asked the prosecuting attorney if there was any way he could get out of it, and was informed that he would have to answer the charge. The appellant stated he signed the name of Mart Scott to the deed upon the advice of his attorney, K. C. Weber.

The appellant offered no testimony.

I. The appellant first contends that the judgment of the trial court should be reversed. In his brief he says: "The information shows that the deed alleged to have been forged was pleaded word for word, yet the deed was not offered. No effort was made by the State to produce the deed and no testimony of its exact contents was offered." The alleged deed was not offered in evidence.

We have repeatedly held that where proper grounds for secondary evidence has not been laid, then it is essential that the forged instrument be introduced in evidence. The deed itself is the best evidence. "The forged instrument must be produced and put in evidence before evidence of the forgery will be admitted at the trial, or its non-production be justified from necessity, as by showing that it is lost or destroyed, or not within reach of the process of the court, or is in the possession of the defendant. And in the last instance, not in the others, reasonable notice must have been given to him to produce it." [3 Bishop New Crim. Proc. (2 Ed.), sec. 433; State v. Flanders, 118 Mo. 227, 23 S.W. 1086; State v. Martin, 229 Mo. 620, 129 S.W. 881.]

In the case at bar, the information set out the alleged forged deed verbatim. The deed conveyed lot 8 in block 14 in the town of Flat River, to Hazel Arenz, the grantor was Mart Scott, and the recited consideration was $ 1250. Without objection, oral evidence was introduced to show that the appellant represented himself to be Mart Scott; that the deed he signed Mart Scott's name to conveyed lot 8 in block 14, in the town of Flat River to Hazel Arenz and the consideration in the deed was $ 1250. There was testimony to the effect that the appellant admitted to the sheriff and a deputy sheriff that he forged the deed by signing the name of Mart Scott to it, and that he wanted to know if there was some way he could pay off and get out of it. The above oral testimony was admitted without objection, and the appellant did not move to strike it out. While the alleged forged deed would have been the best evidence, yet we cannot say that the oral evidence was not of probative value to establish the crime of forgery as alleged.

Nor do we believe there is any variance between the alleged forged deed pleaded in the information and the proof as shown by the evidence. Both the grantor's and grantee's names in the oral evidence are identical with that alleged in the information. The same is true with the description of the property conveyed and the consideration. We think the proof in this case complies with the rule announced in the cases of State v. Smith, 31 Mo. 120; State v. Fay, 65 Mo. 490, and State v. Chamberlain, 75 Mo. 382. In those cases we held that while it is unnecessary for the pleader to have set out the instrument in haec verba, but where he does so, he will be held to strict proof. We hold there is no variance between the evidence as shown by the record and the allegations of the information.

Moreover under Section 3562, Revised Statutes 1929, the question of whether or not a variance between the charge and the proof is material to the merits of the case and prejudicial to the defense of the defendant rests primarily in the discretion of the trial court. [State v....