State v. Bell

• Decision Date: 19 May 1908
• Citation: 212 Mo. 111,111 S.W. 24
• Parties: STATE v. BELL.
• Court: Missouri Supreme Court

111 S.W. 24

212 Mo. 111

STATE v. BELL.

Supreme Court of Missouri, Division No. 2.

May 19, 1908.

1. CRIMINAL LAW—OBJECTIONS—WAIVER.

Accused may not complain that he was forced to trial, without his witnesses, where he did not apply for a continuance, though afforded opportunity to do so.

2. SAME.

Accused may not complain of evidence adduced by the state on his wife's cross-examination, where no objection was made below.

3. WITNESSES—HUSBAND AND WIFE—CRIMINAL LAW.

Under Rev. St. 1899, § 2637 (Ann. St. 1906, p. 1566), forbidding a disclosure by accused's spouse of any confidential communication between them, in a forgery trial it was improper to require accused's wife to testify concerning letters passing between them.

4. SAME—CROSS-EXAMINATION.

In a trial for forging money orders, the state was improperly allowed to show on accused's wife's cross-examination, that she had seen blank money orders in his possession, etc., where she had not been examined in chief respecting the matter.

5. SAME—PRIVILEGED COMMUNICATIONS.

It was improper to require accused's wife to disclose communications between her and accused's counsel.

6. FORGERY—EVIDENCE—ADMISSIBILITY.

In a trial for forging money orders and uttering forged money orders, the state could show that accused, after his arrest, told a police officer that he bought the money orders from a stranger, and, later, that he would tell later who the seller was.

7. CRIMINAL LAW — EVIDENCE OF ANOTHER CRIME—ADMISSIBILITY.

If the commission or attempt to commit another offense tends to prove the offense charged or is one of its constituent elements, it may be shown, and in a trial for forging express money orders the state could show that the office from which the orders purported to be issued was burglarized a day or two before the orders were uttered by accused, in connection with proof that the day before they were uttered accused bought a small order at that office.

8. FORGERY—EVIDENCE—CORPORATIONS.

In a trial for forging express money orders, proof that the express company was authorized to do business in the state was not essential to the admissibility of the money orders; proof that the company was doing an express business in the state, and that the orders purported to be the company's act, whereby a pecuniary obligation was purported to be incurred, being sufficient under Rev. St. 1899, § 2009, defining forgery in the third degree.

9. CRIMINAL LAW—HYPOTHETICAL QUESTIONS —SCOPE.

Hypothetical questions based on evidence tending to show accused's insanity were not objectionable because they did not cover all the evidence in the case.

10. SAME—INSANITY—OPINIONS.

Though nonexpert witnesses may give their opinions as to accused's sanity after stating the facts on which they based their opinions, before one may give an opinion as an expert his competency must be satisfactorily shown.

11. SAME.

That one had practiced medicine for 25 years was insufficient to show his qualifications to give an expert opinion as to accused's sanity, where he declined to testify as an expert, and it did not appear that he had treated patients for insanity.

12. WITNESSES—FEES—EXPERT OPINION.

A physician may be compelled to give an expert opinion involving his professional knowledge without compensation other than regular witness fees.

13. FORGERY—EVIDENCE—SUFFICIENCY.

Evidence on a trial for forgery held sufficient to take the case to the jury.

14. CRIMINAL LAW—INSTRUCTIONS.

One convicted of forging and uttering forged money orders cannot complain because the court did not specifically instruct on the effect of evidence tending to show accused uttered the orders.

15. FORGERY—INFORMATION—SUFFICIENCY.

An information, charging that at a specified time and place accused feloniously and willfully forged, counterfeited, and falsely made a false, forged, and counterfeited express money order, a written instrument which purported to be another's act and to create a pecuniary obligation, and setting out the instrument in full, and that he unlawfully and feloniously had in his possession a certain false, forged, and counterfeited money order, etc., and that he unlawfully and feloniously, with felonious intent to injure and defraud, sold and delivered such order to a specified corporation for a specified sum, with the felonious intent to have it uttered and passed, well knowing that it was forged, etc., against the peace, etc., is sufficient.

Appeal from Criminal Court, Jackson County; J. H. Slover, Special Judge.

William H. Bell was convicted of forgery in the third degree, and he appeals. Reversed and remanded for new trial.

A. E. Martin and L. N. Dempsey, for appellant. The Attorney General and N. T. Gentry, for the State.

GANTT, J.

This is an appeal from a conviction in the criminal court of Jackson county of forgery in the third degree. The prosecution was commenced on the 21st day of November, 1906, by information, duly verified, in which defendant was charged in the third degree with forging a Pacific express money order for $50, and in the second count with uttering the same money order to the Jones Dry Goods Company, a corporation, on October 9, 1906. At the January term, 1907, the defendant was tried and convicted of forgery, and his punishment assessed at two years in the penitentiary. After unsuccessful motions for a new trial and in arrest of judgment, the defendant appealed.

The evidence on behalf of the state tended to prove that the Jones Dry Goods Company was a corporation organized under the laws of Missouri and conducting a dry goods store in Kansas City, and that the defendant visited said store on the 9th of October, 1906, and purchased $9 worth of silk, for which he gave in payment a Pacific express money order for $50. This money order was dated Warsaw, Mo., October 9, 1906, and was made payable to J. W. Clark or order. The defendant stated that his name was Clark, and he had purchased the money order just before going to Kansas City, as he did not wish to carry so much money with him. The cashier of Jones Dry Goods Company accepted his story and paid him the difference between the amount of the order and his purchase, which money defendant carried away with him with the silk. This money order proved to be a forgery. The agent of the express company at Warsaw testified that he did issue a money order to the defendant under the name of W. H. Allen for $5, a day or two before the transaction in question, and that that night some one broke into his office and stole ten blank money orders of the Pacific Express Company. One of these orders was numbered the same as the one which the defendant passed at the Jones Dry Goods Company, and the agent testified that it was never signed or issued by him. The name of W. H. Bowman, agent, was signed to this money order; but that was not the name of the agent at Warsaw of the Pacific Express Company on that date, nor was it the name of any former agent of said company at said place. The evidence further tended to show that the defendant then went to the trunk store of W. F. George & Co., and purchased a trunk for $23, saying that it was for his wife, and he had a wire fixture placed in it for carrying a lady's bonnet. In payment for this trunk he gave another money order for $50, which he indorsed J. W. Clark, and which Mr. George accepted, paying him the difference of $27 in money. On the same day he passed a similar money order on the Mitchell Dry Goods Company in Kansas City in payment for a pair of shoes. In the course of a few days, the defendant was arrested in St. Louis and had in his possession the pair of shoes last mentioned and the trunk. Officer Ghent went to St. Louis for the defendant, and on the way back to Kansas City asked the defendant how he happened to have all these money orders in his possession. The defendant said: "You have treated me pretty nice, and I will tell you the whole facts about this. I bought these drafts from a man and gave him $100 for them at Warsaw." When the officer asked him who the man was, the defendant said he did not know. The officer said it was strange for him to buy such stuff as that from an unknown man, and the defendant said he would tell who the man was later on. The defendant also said he was in the saloon business on Main street in Kansas City. On behalf of the defendant, there was evidence tending to show that he was insane from the time he was arrested and put in jail in Kansas City and at the time of the commission of the offense charged. In rebuttal, the state offered evidence that the defendant was of sound mind at the time of the commission of the crime and at the time of his arrest.

As the information is assailed, it is deemed necessary to insert it:

"State of Missouri, County of Jackson—ss.: In the Criminal Court of Jackson County, Missouri, at Kansas City, Missouri, September Term, 1906. Now comes Isaac B. Kimbrell, prosecuting attorney for the state of Missouri, in and for the body of the county of Jackson, and upon his oath informs the court that W. H. Bell, alias J. W. Clark, whose Christian name in full is unknown to said prosecuting attorney, on the 9th day of October, 1906, at the county of Jackson, state of Missouri, feloniously and willfully did forge, counterfeit and falsely make a certain false, forged and counterfeited express money order, which said express money order was then and there an instrument of writing purporting to be the act of another, and which said instrument of writing purported to create a pecuniary demand and obligation, which said false, forged and counterfeited express money order and instrument of writing is of the purport and effect following, to wit: `Express money order N 207369. When countersigned by agent at point of issue the Pacific Express Company agrees to transmit and pay to the order of J. W. Clark $50.00 the sum of fifty no/100 dollars. Not good for more than highest printed marginal amount. In no...