State v. Arnett

• Decision Date: 21 March 1936
• Docket Number: 34122
• Citation: 92 S.W.2d 897,338 Mo. 907
• Parties: The State v. W. F. Arnett, Appellant
• Court: Missouri Supreme Court

92 S.W.2d 897

338 Mo. 907

The State v. W. F. Arnett, Appellant

No. 34122

Supreme Court of Missouri

March 21, 1936

Appeal from Crawford Circuit Court; Hon. Will H. D. Green Special Judge.

Judgment affirmed.

John P. Moberly and Phil M. Donnelly for appellant.

(1) The indictment is defective in that it fails to charge that the deposits represented by the alleged book entries were not actually made. State v. Zingher, 302 Mo. 657; State v. Strack, 316 Mo. 596. This rule is the same as in perjury and false pretense. State v. Strack, 316 Mo. 595. The rule as applied in false pretense. State v. Peacock, 31 Mo. 413; State v. Phelan, 159 Mo. 127; State v. Young, 266 Mo. 731; 11 R. C. L 859. Although the evidence may be sufficient to show the commission of a crime, yet the omission of an element from the indictment is reversible error. State v Plotner, 283 Mo. 95. (2) The prosecuting attorney should have made the opening statement. State v. Price, 111 Mo.App. 425; Thalhein v. State, 38 Fla. 169; Gilbert v. People, 121 Ill.App. 423; Burkhead v. State, 18 Tex.App. 599. The statement by the Assistant Attorney General that the defendant had extracted notes from the assets of the bank was entirely out of place and warrants a reversal. 2 R. C. L. 410. (3) The demurrer to the evidence should have been sustained. There was no evidence of any intent to defraud and nobody was defrauded. R. S. 1929, sec. 4192. A false entry in corporate books to deceive someone with no purpose of profit contemplated or possible is not forgery. Peo. v. Hegeman, 107 N.Y.S. 261; 26 C. J. 920. The interest on the Keyes notes was not collected nor credited on the notes. In fact, it appears the prospect of collecting on the notes is better than from the bank, because they are secured and the deposits are not. (4) The so-called passbook of Mr. and Mrs. H. M. Keyes was not a "book of accounts kept by" the bank. To be such it must have been a book in which original entries were made in the usual course of business at or about the time the business was transacted. 10 R. C. L., pp. 1179, 1182; Anchor Milling Co. v. Walsh, 108 Mo. 277; Stephen v. Metzger, 95 Mo.App. 621. (5) The Schwieder passbook and ledger sheets were admitted and by Instruction 5 the court told the jury that they contained evidence of a fraudulent intent sufficient for them to consider. The only evidence they contain tends to show a conflict between them. No evidence of fraud intended or perpetrated. The law of proving other crimes is extensively discussed in the following cases: State v. Myers, 82 Mo. 558; State v. Patterson, 271 Mo. 109; State v. Plotner, 283 Mo. 96. (6) This court will take judicial notice that the penalty usually fixed by juries for grand larceny is two years in the penitentiary. In this case the penalty assessed is four years, although nobody lost a penny. This leads us to look closely for a cause. State v. Ferguson, 152 Mo. 99; State v. King, 174 Mo. 660; State v. Wigger, 196 Mo. 100; State v. Wellman, 253 Mo. 318; State v. McBrien, 265 Mo. 612; State v. Hess, 240 Mo. 160; State v. Jackson, 83 S.W.2d 94; L. R. A. 1918D, 12, 24, 79. (7) Juror John H. Slovensky lost money in the bank and from his conversation with witness Moutray he carried that thought into the jury box. This violated the spirit of the law. R. S. 1929, sec. 3668. (8) The jurors, after the case had been finally submitted, were allowed to separate without leave of the court and in violation of the statute. At one time four of them were in one room playing cards, while the others were in the second room away, where there were people not on the jury, and the room between was occupied by several persons. At another time eleven of them slept upstairs in the McInnis home, accessible by a stairway to an outside door, while the deputy sheriff slept downstairs with the other juror. R. S. 1929, sec. 3734; State v. Asbury, 327 Mo. 182; State v. Orrick, 106 Mo. 126; State v. Howland, 119 Mo. 419; 16 R. C. L. 309.

Roy McKittrick, Attorney General, and Covell R. Hewitt, Assistant Attorney General, for respondent.

(1) The indictment in this case is sufficient and charges every essential element of the crime. Sec. 4192, R. S. 1929; State v. Morro, 280 S.W. 697; State v. Plotner, 222 S.W. 767. (a) The verdict is in the approved form, responsive to the issues and is within the limitations prescribed by the statute, and defendant was duly sentenced with the verdict. Sec. 4205, R. S. 1929. (2) This assignment of error is too general and insufficient to preserve anything for review. Sec. 3735, R. S. 1929; State v. Carroll, 62 S.W.2d 863; State v. Francis, 62 S.W.2d 552; State v. Williams, 292 S.W. 20. (3) Demurrer offered at the close of State's case was properly overruled. Where appellant offers evidence he waives demurrer offered at close of State's case. State v. Starling, 207 S.W. 768; State v. Hembree, 295 Mo. 9; State v. Mann, 217 S.W. 69. (4) The passbook in which the alleged false entries were entered and the loose-leaf ledger sheets were properly introduced and received in evidence. State v. Plotner, 222 S.W. 771. However this assignment is too general. Sec. 3735, supra; State v. Jetts, 300 S.W. 754; State v. Ross, 300 S.W. 786; State v. Murrell, 289 S.W. 859; State v. Copeland, 71 S.W.2d 751. (5) The court did not err and it was proper to give Instruction 5 on the question of intent shown by similar transactions. State v. Morro, 280 S.W. 701; State v. Samis, 296 Mo. 486. (6) The giving of Instruction 9 on "credibility of the witnesses" was not error. State v. Lewis, 20 S.W.2d 529; State v. Hart, 56 S.W.2d 594; Sec. 3681, R. S. 1929; State v. Sanders, 4 S.W.2d 816. (7) Instruction 10 on "reasonable doubt" is in the usual form. State v. Neuslein, 25 Mo. 124; State v. Christian, 253 Mo. 397; State v. Ross, 300 S.W. 786; State v. Lyle, 296 Mo. 437. (8) There is no evidence of separation of the jury after submission. Sec. 3734; R. S. 1929; State v. Noland, 111 Mo. 505; Sec. 3686, R. S. 1929; State v. Shawley, 67 S.W.2d 88. (9) There is no evidence to sustain this alleged error. Voir dire examination of jurors not shown in bill of exceptions. Motion for new trial does not prove itself. State v. Rasco, 239 Mo. 586; State v. Coleman, 264 Mo. 435. (10) Allegations in motions for new trial do not prove themselves. State v. Parker, 24 S.W.2d 1026; State v. Walker, 232 Mo. 252; State v. Harmon, 296 S.W. 391; State v. Stogsdill, 23 S.W.2d 22, 324 Mo. 105; State v. Yowell, 55 S.W.2d 991, 331 Mo. 716.

Westhues, C. Cooley and Bohling, CC., concur.

OPINION

WESTHUES

On October 26, 1933, an indictment was filed in the Circuit Court of Crawford County, Missouri, charging appellant with the crime of forgery in the third degree, as defined in Section 4192, Revised Statutes 1929 (Mo. Stat. Ann., p. 2945). The particular charge was that appellant, as cashier of the Crawford County Farmers' Bank, had, with intent to defraud the bank, made five false entries in a book of account, commonly called a depositor's passbook. The total amount of these items was $ 422.40, and the items on their face showed that Mr. and Mrs. H. M. Keyes had deposited that sum in the bank. Upon a trial appellant was convicted and sentenced to four years' imprisonment in the penitentiary. From this sentence he appealed.

The evidence disclosed the following state of facts: Appellant had for many years been cashier of the Crawford County Farmers' Bank, located at Steelville. Mr. and Mrs. Keyes lived in the State of Illinois. Keyes had money invested, represented by notes and mortgages signed by persons living in Crawford County. Keyes had authorized appellant to collect whatever was due on these notes, either principal or interest, and to reinvest the proceeds thereof for Keyes. Appellant had, by virtue of his agency, handled Keyes' financial business in Crawford County for about ten years. Keyes was given a passbook in which was entered the amounts of cash appellant had collected and deposited in the bank. This passbook was sent to the bank at various times to be balanced. During the month of August, 1932, appellant made the following entries in the passbook of Keyes, which were the basis of this prosecution: August 22 -- Worley, $ 64; August 23 -- May, $ 49.60; August 23 -- Reeves, $ 80; August 25 -- Coleman, $ 32; August 29 -- Ives, $ 196.80. As explained by the evidence the names appearing opposite the dates represented the persons who had paid the amounts indicated, as payments of interest or principal on notes belonging to Keyes. The amounts set out above, while entered in the customer's passbook, did not appear in any of the records retained by the bank. This passbook was sent to Keyes, by appellant, with the above entries and a letter informing Keyes that he had collected the amounts indicated and also that Keyes now had a nice balance in the bank which he would not need and appellant would invest some of the money as he had done on prior occasions. Later the bank became insolvent and its assets were taken over by the State Finance Department for the purpose of liquidation. Keyes filed a claim with the Deputy Commissioner of Finance for the amounts as evidenced by the entries above set forth. Appellant admitted that he had made the entries referred to without any deposit having been made. His explanation was as follows:

"Q. Are you the Defendant in this case? A. Yes, sir.

"Q. You have seen then what is deemed the pass book of Mr. and Mrs. Keys; have you? A. Yes, sir.

"Q. Did you make those entries in that book, the five last entries? A. Yes, sir.

"Q. Had you at that time collected the interest that is there recorded? A. No, sir.

"Q. Why did you make that entry? A. To keep Harry Keyes satisfied as a valid customer of the Crawford County Farmers Bank, and my...