State v. Dunlap

• Decision Date: 10 October 1966
• Docket Number: No. 1,No. 51829,51829,1
• Citation: 408 S.W.2d 4
• Parties: STATE of Missouri, Respondent, v. Paul Wilbur DUNLAP, Appellant
• Court: Missouri Supreme Court

Page 4

408 S.W.2d 4

STATE of Missouri, Respondent, v.Paul Wilbur DUNLAP, Appellant.

No. 51829.

Supreme Court of Missouri, Division No. 1.

Oct. 10, 1966.

Motion for Rehearing or for Transfer to Court En Banc Denied

Nov. 14, 1966.

Norman H. Anderson, Atty. Gen., Jefferson City, Edward P. McSweeney, Sp. Asst. Atty. Gen., Clayton, for respondent.

Robert G. Duncan, Pierce, Duncan, Beiting & Shute, Kansas City, for appellant.

HIGGINS, Commissioner.

Appellant was charged by amended information in the Circuit Court of Boone County, September 23, 1965, with the felony of uttering a forged check in violation of Section 561.011, V.A.M.S.A jury found him guilty and assessed his punishment at three years' imprisonment in the penitentiary.Sentence and judgment were rendered in accordance with the verdict.

Appellant says the evidence was not sufficient to support the verdict and that it was error, therefore, to deny his motions for acquittal.

The evidence, all from the State, warrants the following statement of facts: On October 22, 1964, Meredith Franklin Lee was the assistant manager of Eastgate IGA Foodliner, a corporation engaged in retail grocery business in Eastgate Shopping Center, 200 East Broadway, Columbia, Boone County, Missouri.At about 7:30 p.m., appellant, Paul Wilbur Dunlap, tendered a check, Exhibit 1, in the words and figures following:

Appellant, with Lee watching, endorsed the check 'John Ekstrom, Green Valley Drive.'Although requested by Lee to produce identification, appellant showed none and excused himself by saying his wallet containing identification had been stolen and that the check was an insurance recovery for the loss of his television set which he said had been stolen at the same time.Nevertheless, Lee cashed the check and gave appellant $130 in currency 'because Green Valley Drive is right near the store.'As appellant left the store Lee also noted on the check the license number on the 1957 or 1958 model blue and white Chrysler in which appellant rode as a passenger.He later gave this information, together with a physical description of appellant to the police.The check was presented for payment to Eastgate's bank, Columbia Savings Bank, which returned the check unpaid.The drawee bank, Baltimore Bank, never honored the check, and Eastgate has never received any repayment of the $130 given to appellant for the check.Upon its return, the check bore a notation on its face and by a slip attached by Baltimore Bank, 'Refer to supt. of insurance.'After taking the check Lee, later that night, checked the telephone book for Ekstroms and found no John Ekstrom.The only Ekstrom was shown at a different address.After the check was returned without payment, Lee made several trips to Green Valley Drive seeking John Ekstrom.There are but seven or eight houses there and he never located a John Ekstrom.

Joseph A. Pawlow, the purported signatory for the purported drawer of the check, an examiner in the Missouri Insurance Department, examined the Allied Western Mutual Insurance Company in Kansas City in February to June, 1964, after which, in late June, 1964, the company was placed in receivership with the superintendent of insurance as receiver.The company was in receivership and not doing business on October 20, 1964, the date of the check in question and a time when only the superintendent of insurance could sign its checks.Joseph A. Pawlow had no authority to execute checks for the purported drawer and he neither signed, used a rubber stamp, nor authorized the placing of his signature or a stamp on the check in question.He formerly had been with Jefferson Mutual Fire Insurance Company in St. Louis and had a rubber stamp signature there.He was not with Jefferson after September 1958 and, even though Allied took over Jefferson, Allied acquired no authority to use Pawlow's rubber stamp which he had not seen since September 1958.During the receivership Allied's manager unsuccessfully tried to raise money to redeem the company.The check purported to have been drawn by Allied as a claim check was not of the type used for claims by the company or its local agents despite a reference to claim on its face.Pawlow knew of no John Ekstrom or of any policy or claim such a person might have had against Allied.He knew of no other Joseph A. Pawlow in Missouri.Pawlow had become aware at trial time that a stamp of his signature had been used without authority on other Allied checks, and that prior to receivership, someone within Allied had been diverting funds from the company.

InstructionNo. 8 submitted the case against appellant.It is not questioned by appellant; it required findings of all the elements of the crime of uttering a forged instrument in violation of Section 561.011, supra, and the foregoing statement warranted the submission.State v. Forbus, Mo., 305 S.W.2d 447;State v. Forbus, Mo., 332 S.W.2d 931.The evidence warranted findings that appellant, on October 22, 1964, in Boone County, Missouri, uttered a forged check which purported to have been drawn by Allied Western Mutual Company, by Joseph A. Pawlow, to Eastgate Foods, Inc., by forging an endorsement purporting to be that of a John Ekstrom; that the check was a forgery because the purported drawer had no authority to execute the check by stamp or signature; that appellant knew the check to be forged and false and uttered it as true by forging the endorsement of John Ekstrom to defraud Eastgate Foods, Inc., of $130 given by Eastgate for the check in reliance on its genuineness.

Appellant argues, however, that the evidence did not make out a forgery because appellant may well have had John Ekstrom's permission and authority to endorse his name and appellant may have been using that name.He relies on the statement that 'a person may assume a different name from his true one and may make contracts under his fictious name.'State v. Euge, Mo....