State v. Black

• Decision Date: 31 October 1882
• Citation: 12 Mo.App. 531
• Parties: STATE OF MISSOURI, Respondent, v. JOHN D. BLACK, Appellant.
• Court: Missouri Court of Appeals

12 Mo.App. 531

STATE OF MISSOURI, Respondent,

v.JOHN D. BLACK, Appellant.

St. Louis Court of Appeals, Missouri.

Oct. 31, 1882.

1. The law does not regard middle names, and hence it is immaterial that John L. Black is indicted under the name of John D. Black.

2. Written notice to a prisoner to produce a paper under his control is not necessary where his counsel has, in open court, promised to produce it.

3. Upon a failure to produce such paper, without cause, according to promise, a copy thereof may be used in evidence.

APPEAL from the St. Louis Court of Criminal Correction, CADY, J.

Affirmed.

PETER E. BLAND, of counsel, with F. D. TURNER, for the appellant.

BAKEWELL, J., delivered the opinion of the court.

The defendant was prosecuted by the name of John D. Black, on the charge of having made, before one Allen, a notary public, a corrupt, voluntary oath, with the intent to defame Charles P. Johnson, and in order that the same might be used in an investigation pending before the police commissioners of St. Louis.

Defendant pleaded not guilty, and that his true name was John L. Black.

The notary testified that, on November 7, 1881, the defendant Black, present in the court-room, made before him an affidavit which the notary did not read. The notary asked defendant if he was familiar with the contents of the paper, to which defendant assented, and swore to the same, and signed it in the notary's presence, who then affixed his signature and seal to the jurat. The notary never administered any other affidavit to defendant, and never saw him, except on that occasion and on the trial.

Johnson, a reporter of the Republican newspaper, swore that he was present at a meeting of the police commissioners on November 8, 1881. Bowman, an attorney, representing the chief of police, presented to the board, on that occasion, an affidavit, which the witness then got from the official reporter of the board and copied. This copy was printed in the Republican of the next day, and the printed copy which was read by the witness, was a copy of the original affidavit presented by Bowman. This printed matter sets forth the exact statement averred in the information, and is signed, “J. D. Black.” The witness says he did not copy the notary's signature and seal, which were attached to the original.

Spink, a reporter of the Globe-Democrat newspaper, testified that he was present at the meeting of the board of police commissioners on November 8th; that he saw there an affidavit signed “J. D. Black,” and sworn and subscribed to before James W. Allen, with his seal attached; that he copied it, and that the copy shown him by the attorneys for the state, was a correct copy of that affidavit, which he got from Robinson, the official reporter of the board.

Robinson swore that he was official stenographer of the board of police commissioners; that the affidavit purporting to be signed by Black, was entrusted to him by the board, on the evening of November 8th; that the witness took this to his office; that he saw Spink apparently engaged in copying it; that he kept the affidavit four days, and then gave it to Kennett, the chief of police; that the copies of the Black affidavit in the papers were, according to the recollection of the witness, correct.

Kennett, chief of police, swore that the affidavit signed “J. D. Black” was handed to him about November 7th, by a messenger whom he did not know; that he handed the affidavit to Bowman, his attorney; that Bowman asked questions from the affidavit at the subsequent meetiugs of the police commissioners; that Bowman returned it to the witness; and that he handed it to Frank D. Turner, when the Boland case was tried. A paper was handed to the witness, which he declared to be a correct copy of the affidavit.

Frank D. Turner is one of the counsel of defendant, and he cross-examined for defendant, on the trial.

Charles T. Noland, an attorney representing the state, swore, that when the case against defendant was called for trial on a former occasion, it was continued by consent; that witness then stated to Turner that the state wanted the affidavit, and that Turner promised to produce it at the trial; that, thereupon, witness stated this understanding to the court. When the case was next called, Turner was out of town. Baldwin represented the defence. The affidavit was not forthcoming according to agreement, and the case was laid over. Subsequently, Turner said he could not produce the affidavit; and it was not produced. To this testimony, Turner, for the defence, objected, whereupon the court said: “In the absence of...