State v. Arenz, No. 34819.

CourtUnited States State Supreme Court of Missouri
Writing for the CourtTipton
Citation100 S.W.2d 264
PartiesTHE STATE v. SYLVIA ARENZ, Appellant.
Decision Date23 December 1936
Docket NumberNo. 34819.
100 S.W.2d 264
THE STATE
v.
SYLVIA ARENZ, Appellant.
No. 34819.
Supreme Court of Missouri.
Division Two, December 23, 1936.

[100 S.W.2d 265]

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.

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...

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4 practice notes
  • State v. Breeden, No. 38846.
    • United States
    • Missouri Supreme Court
    • 5 Junio 1944
    ...Scanlan, 308 Mo. 683, 694, 273 S.W. 1062, 1065[6]; State v. Ellis, Mo. Sup., 159 S.W.2d 675, 676[5]; State v. Arenz, 340 Mo. 160, 165[5], 100 S.W.2d 264, 266[8]. Said motion questioned the instruction, referring to it by number only, for the reason it "is not founded on the evidence in......
  • Bellovich v. Griese, No. 32865.
    • United States
    • United States State Supreme Court of Missouri
    • 23 Diciembre 1936
    ...irrelevant testimony was well calculated to create in the minds of the jurors an unfavorable impression toward plaintiff and to distract 100 S.W.2d 264 the attention of the jury from the real issues in the Considerable latitude is allowable, in the sound discretion of the trial court, in cr......
  • State v. Kammerich, No. KCD28159
    • United States
    • Missouri Court of Appeals
    • 2 Mayo 1977
    ...statute permits a discretionary ruling of the court with respect to whether or not the variance is material. State v. Arenz, 340 Mo. 160, 100 S.W.2d 264, 266 (1936). But whether that statute covers the question of a variance in date is immaterial because it is clear that the rule in Missour......
  • State v. Joyce Adams-Nienaber, 88-LW-2045
    • United States
    • United States Court of Appeals (Ohio)
    • 13 Junio 1988
    ...for judgment of acquittal. Adams-Nienaber relies upon People v. Wells (1942), 380 Ill. 347, 44 N.E.2d 32, and State v. Arenz (1936), 100 S.W.2d 264, for the proposition that a defendant may not be convicted of forgery without the introduction of the forged instrument itself in evidence. We ......
4 cases
  • State v. Breeden, No. 38846.
    • United States
    • Missouri Supreme Court
    • 5 Junio 1944
    ...Scanlan, 308 Mo. 683, 694, 273 S.W. 1062, 1065[6]; State v. Ellis, Mo. Sup., 159 S.W.2d 675, 676[5]; State v. Arenz, 340 Mo. 160, 165[5], 100 S.W.2d 264, 266[8]. Said motion questioned the instruction, referring to it by number only, for the reason it "is not founded on the evidence in this......
  • Bellovich v. Griese, No. 32865.
    • United States
    • United States State Supreme Court of Missouri
    • 23 Diciembre 1936
    ...irrelevant testimony was well calculated to create in the minds of the jurors an unfavorable impression toward plaintiff and to distract 100 S.W.2d 264 the attention of the jury from the real issues in the Considerable latitude is allowable, in the sound discretion of the trial court, in cr......
  • State v. Kammerich, No. KCD28159
    • United States
    • Missouri Court of Appeals
    • 2 Mayo 1977
    ...statute permits a discretionary ruling of the court with respect to whether or not the variance is material. State v. Arenz, 340 Mo. 160, 100 S.W.2d 264, 266 (1936). But whether that statute covers the question of a variance in date is immaterial because it is clear that the rule in Missour......
  • State v. Joyce Adams-Nienaber, 88-LW-2045
    • United States
    • United States Court of Appeals (Ohio)
    • 13 Junio 1988
    ...for judgment of acquittal. Adams-Nienaber relies upon People v. Wells (1942), 380 Ill. 347, 44 N.E.2d 32, and State v. Arenz (1936), 100 S.W.2d 264, for the proposition that a defendant may not be convicted of forgery without the introduction of the forged instrument itself in evidence. We ......

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