State v. Douglas

• Decision Date: 22 December 1925
• Docket Number: No. 26168.,26168.
• Citation: 278 S.W. 1016
• Parties: STATE v. DOUGLAS.
• Court: Missouri Supreme Court

278 S.W. 1016

STATE v. DOUGLAS.

No. 26168.

Supreme Court of Missouri, Division No. 2.

December 22, 1925.

Motion for Rehearing Denied January 6, 1926.

Appeal from Circuit Court, Jackson County; Thad B. Landon, Judge.

Rey O. Douglas was convicted of forgery in the first degree, and he appeals. Affirmed.

I. B. Kimbrell, A. N. Gossett, W. W. McCallles, and Horace Guffin, all of Kansas City, for appellant.

Robert W. Otto, Atty. Gen., and Harry L Thomas, Sp. Asst. Atty. Gen., for the State.

WHITE, J.

On a trial before a jury, February 5, 1924, in the circuit court of Jackson county, the appellant was found guilty of forgery in the first degree, and his punishment assessed at 10 years' imprisonment in the state penitentiary. His appeal was in due form.

The indictment upon which he was brought to trial contained four counts. The state dismissed as to counts 1, 3, and 4, and went to trial on the second count, which charged that the defendant, February 10, 1921, did unlawfully and feloniously forge a certain deed of trust purporting to be the act of one Joseph H. Smith, by Which a right and interest in certain real property purported to he transferred to one Harvey C. Galbreath, in trust to secure the payment of certain moneys. etc., to the Jackson County Savings & Loan Association, with intent to defraud.

Evidence showed that the defendant, Rey O. Douglas, for several years had been secretary of the Jackson County Savings & Loan Association, and had general charge of its affairs. He was an attorney, a member of a firm whose offices were at the same number at which the loan association maintained its offices, 202 Ridge Arcade. An application for a loan of $10,000 was presented August 14, 1921, to the loan association, purporting to be signed by Joseph H. Smith, describing by street and number the property on which the loan was desired. This application went through the usual course; the appraiser reported favorably on the application for $9,000; the loan was approved by the board of directors at its regular meeting; and, on September 10, 1921, a deed of trust was executed purporting to be the instrument of Joseph H. Smith, whereby he conveyed the property mentioned to Galbreath, in trust, to secure a loan for $4,500. The deed of trust purported to be duly acknowledged before Ray D. Berry, notary public, September 10, 1921, and to be filed for record on that day in the recorder's office for Jackson county, with the certificate of the recorder attached. A promissory note of the same date, purporting to be signed by Joseph H. Smith for $4,500, was executed as a part of the transaction. On the same day two checks in due form, each for $4,500, were issued by the company, payable to Joseph FL Smith. These checks on the backs were indorsed: "Pay Rey O. Douglas, Trustee, or order, Joseph H. Smith"—and showed on their faces that they had been presented and paid.

The proceeds of the checks went into the trustee's account, and were later diverted by the check of Douglas to the Douglas-Dahlin Company, in which he was interested, and still later to the Fidelity Auto Supply Company.

In the deed of trust and the notes, in the bond, and in the indorsement where it appears on the checks, the name "Joseph H. Smith" was in the handwriting of the defendant. The certificate of acknowledgment, the recorder's certificate of filing and recording, the name of the notary who took the acknowledgment, and the name of the recorder, were all in the handwriting of Rey O. Douglas. No such instrument was ever acknowledged or filed for record.

Whether a separate mortgage was made to secure another note for $4,500, to correspond with the second check, does not appear from the oral evidence.

The evidence showed Joseph H. Smith had no interest in the property described. One Joseph H. Smith testified that he was the only person of that name in Kansas City, and he had never had any dealings with the association, and the signatures on the several papers were not his.

The defendant did not attempt to controvert the facts shown by the state's evidence regarding the forgery of the deed of trust, the notes, and the indorsements on the cheeks. The only defense offered was an attempt to show that the defendant was insane at the time of the alleged forgery. On this evidence the defendant was found guilty, as stated.

I. The indictment in this case was signed and authenticated as follows: "Clarence A. Burney, Prosecuting Attorney." "A true bill, D. M. Pinkerton." The defendant filed a motion to quash the indictment, because the authentication did not conclude as provided by section 3882, R. S. 1919, which required that the foreman of the grand jury should certify to it by the following indorsement: "A true bill. A. B., Foreman." It was claimed in the motion that the omission of the word "foreman" invalidated the indictment; that because of this omission it was not presented by the proper authority. The motion to quash was overruled, and that ruling is assigned as error.

The record shows the name of D. M. Pinkerton returned among the grand jurors of Jackson county. It shows the court duly swore the grand jury and appointed D. M. Pinkerton foreman. The court in which the indictment was returned therefore knew by its own record, which is before us, that Pinkerton was foreman of the grand jury, and knew that the indictment was properly authenticated. When the fact of authentication appeared to the court, the failure to comply with the mere statutory formality could not by any means injure the defendant. The reasoning of this court in the case of State v. Orrick, 106 Mo. loc. cit. 118, 17 S. W. 176, 177, is in point, where it was said that an irregularity somewhat similar in the authentication of the indictment did not invalidate it, because it was "impossible that the court could be imposed upon." See, also, Corpus Juris, vol. 31, p. 622.

Besides, in section 3908, R. S. 1919, we have a provision to the effect that no indictment shall be deemed invalid "for any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits." This, of course, has been said to mean defects or imperfections of the same class as those enumerated in that section, but a reading of the section will show that imperfections of like character to this one are mentioned. One, for instance, is omission to allege that the grand jurors were empaneled, sworn, or charged. Such an allegation is mere matter of form relating to proper authority for the charge. Placing the word "foreman" after the signature relates to the authentication of the charge. It is no part of the charge itself. It is not claimed in this case that "the omission of the word `foreman' prejudiced the substantial rights of the defendant upon the merits."

The appellant argues that, when Pinkerton signed the indictment without designating his character as foreman, he signed only in his private capacity and not officially, and "he is not under the pains and penalty of his official position and oath." Bishop on Criminal Procedure, vol. 2, § 698, has this to say about such an indorsement:

"The ordinary course, when the grand jury have determined to affirm a bill, is for the foreman to write under the words "a true bill" his own name, adding his official title of `foreman of the grand jury,' or, what means the same thing, simply `foreman.' But the name alone, without mention of the official character, suffices, because the latter appears of record"— citing cases.

This court said, in the Orrick Case (106 Mo. loc. cit. 118), 17 S. W. 176, 177:

"The court appoints a foreman, indictments are returned into open court by the foreman, in the presence of the whole jury. It would seem impossible that the court could be imposed upon."

That means simply this: When an indictment is returned in open court in the presence of the jury, the court knows from its record that the foreman who acts as such is foreman of the grand jury. The foreman is the person, the member of the grand jury, authorized to certify and authenticate the indictment as a true bill. While the grand jury was in session, he could not, in the performance of his duty, act in any other way than officially. When the indictment was presented in open court in the presence of all the jury, the judge could not have been imposed upon, and must have assured himself before receiving the indictment that the foreman was acting in his official capacity. The effect of appellant's argument is this: We must assume that the foreman certified to a falsehood when he said the grand jury presented a true bill, for in his private capacity he could not know that fact.

A further objection is the second count of the indictment on which the trial was had does not allege that the grand jurors for the state of Missouri, duly summoned for the said county of Jackson, etc., made the presentment. The second count directly incorporates the missing allegation in regard to the summoning of the grand jury, which appears in the first count, because it begins with, "The grand jurors aforesaid, upon their oaths aforesaid, do further present." This court, in case of State v. Knock, 142 Mo. 515, 44 S. W. 235, held that a reference of that kind to a prior count in an indictment incorporates the necessary allegations in the count on which the defendant is tried. Appellant argues that the case is not in point, because the count referred to was abandoned, while in this case the count referred to was dismissed. We think that is a distinction without a difference. The indictment is one instrument. The formal allegations of authority in the first count are incorporated by reference in the subsequent counts. When the first count was dismissed, the dismissal' affected the charge of the crime averred in that count. It did not dismiss from the consideration of the court the formal parts which by reference are incorporated in each subsequent count.

We...