State v. Gillman, 48529

• Decision Date: 12 February 1962
• Docket Number: No. 48529,No. 2,48529,2
• Citation: 354 S.W.2d 843
• Parties: STATE of Missouri, Respondent, v. John Daniel GILLMAN, Appellant
• Court: Missouri Supreme Court

Page 843

354 S.W.2d 843

STATE of Missouri, Respondent, v. John Daniel GILLMAN, Appellant.

No. 48529.

Supreme Court of Missouri, Division No. 2.

Feb. 12, 1962.

Motion for Rehearing or for Transfer to Court en Banc Denied

March 12, 1962.

Joseph Langworthy, Pacific, for appellant.

Thomas F. Eagleton, Atty. Gen., John C. Baumann, Asst. Atty. Gen., Jefferson City, for respondent.

STOCKARD, Commissioner.

Appellant was found guilty by a jury of the forgery of a check. The trial court, after finding that he had been convicted and imprisoned for prior felonies, determined his sentence to be seven years in a correctional institution. Following sentence and judgment this appeal was taken.

This is a companion case to State v. Adamson, Mo.Sup., 346 S.W.2d 85, and in this case, as in that one, much of the State's evidence came from Moss Edward Shoemaker and Albert Wendell Hall who admitted participation in the preparation and passing of the series of checks out of which the present charge arose. From the evidence it reasonably could be found that appellant, Adamson and Shoemaker, working together, caused to be printed a number of check forms to resemble the printed checks used by John R. Burton, a contractor, at Montgomery City, Missouri. On each of fifteen checks introduced in evidence the name of 'Carl R. Smith' was written in as payee and the word 'bonded' was perforated into the paper over the name of the payee. The amount of each check was $72.41, and each was signed in the name of Peral Thompson, a person who actually signed Burton's authentic checks. The forged checks were passed by Hall. In most cases he would make a small purchase at a business establishment, give a forged check in payment, and receive the balance of the face amount of the check in cash. The check forming the basis of the present charge, indentified as State's Exhibit No. 1, was passed at the Mexico Lumber Company to purchase 50 pounds of nails for $7.50. Appellant and the other three persons involved in the scheme divided the money received, but perhaps not equally.

Appellant's first point is that 'The court erred in overruling defendant's oral pretrial motion for dismissal as to Count I [upon which appellant was tried, Count II having been dismissed] of the amended information upon the grounds that, as shown by the records in this case and in cases No 8823 and No. 8824, that charge is the same as the charge in Court I of the informations in these two cases and that on this charge defendant was brought before the Magistrate Court of Audrain County on March, 11, 1960 for preliminary hearing; and said Court at that time continued these causes to May 13, 1960, in vioation of Section 544.320, V.A.M.S., Supreme Court Rule 23.06, 42 V.A.M.S. ¹ , and defendant's right to a speedy trial * * *.'

From the allegations in this point, which do not prove themselves, and from the somewhat confusing and unresponsive argument in the brief, it appears that although appellant makes no complaint whatever as to the procedure followed in this case as to the preliminary hearing he contends that on oral motion (not shown in the transcript) the trial court should have dismissed Count I of the information because in two other criminal cases pending against him the Magistrate Court improperly continued the preliminary hearings thereon. None of this is shown in the record before this court. Appellant admits in his argument that the question is 'probably not principally one of jurisdiction' but is 'more properly a policy question.' His argument appears to be that even though the alleged improper continuances in the other cases had no bearing on his conviction in this case and even though the requested action might permit or cause a guilty man to go free, still this court as a matter of policy should reverse this case outright to prevent such continuances in the future (but he admits there is now a remedy for such situations) and to put a stop to a wholly unrelated alleged practice of the police of the City of St. Louis with respect to holding persons in custody. The statement of the point and the summary of the argument sufficiently demonstrate that there is no merit whatever to appellant's first point, and it is disapproved.

Appellant's second point is that the trial court erred in overruling his motion for a mistrial 'upon the grounds that the prosecuting attorney knowingly permitted false and perjured testimony to be used against defendant and suppressed testimony favorable to him, * * *.'

Moss Shoemaker testified for the State and in doing so admitted that he had participated in the scheme to print, fill out and pass the forged checks, and he testified that appellant participated in the entire scheme. Counsel for appellant then cross-examined him at length and the witness was excused. At the request of appellant's counsel Shoemaker was subsequently recalled for additional cross-examination, and after some questions concerning previous convictions, the following occurred:

'Q. Didn't you, in fact, discuss your testimony in this case with Mr. Levvis? [Prosecuting attorney].

'A. No. Sir.

'Mr. Levvis: Which testimony are you referring to?

'Q. Any testimony. Weren't you in fact promised that if you would testify against Mr. Adamson and Mr. Gillman or either of them----?

'A. I said that I would.

'Q. Weren't you in fact promised then that you would be given a lighter sentence?

'A. I was told that I couldn't be promised anything, that it was up to the Judge.

'Q. Didn't you understand though that the effect of it would be to receive a lighter sentence?

'A. Well, I was told that it would be considered seriously.

'Q. Were you not told that such a recommendation would be made by the prosecuting attorney?

'A. I didn't know for sure what the prosecutor----.

'Q. Were you told that?

'A. No, sir, I wasn't told just what was going to be recommended.

'Q. But weren't you told in effect that it would be a lighter sentence if you testified?

'A. I was told that it would be considered.

'Q. Were you told or were you not told that Mr. Levvis would recommend a lighter sentence if you testified?

'A. I wasn't told by Mr. Levvis that he would recommend anything.

'Q. Were you told--I didn't ask you whether you were told by Mr. Levvis or not, I asked you if you were so told?

'A. I was told if I testified that it would be took into consideration.'

Counsel for appellant then continued his cross-examination on other matters and the witness was excused. During the presentation of appellant's case the prosecuting attorney was called as a witness. His testimony, in substance, was that he did talk to Shoemaker on two occasions, once in the office of Shoemaker's attorney, and once during the trial of Adamson, a co-conspirator, and that during the discussion in the attorney's office the punishment of Shoemaker 'may have been touched upon' at that time. Counsel for appellant moved for a mistrial 'upon the grounds that the State [sic] has introduced and was allowed to elicit, without challenge, testimony by one of its own witnesses in the case, Mr. Shoemaker, to the effect that he had not discussed the case with the prosecuting attorney when the prosecuting attorney knew in fact that that was not true, as shown by Mr. Levvis's testimony.' $It is perfectly obvious that the State did not introduce and did not elicit the testimony of Shoemaker that he had not discussed his testimony with Mr. Levvis. Such testimony was brought out by counsel for appellant. It is appellant's position that when Shoemaker made the categorical denial that he had talked to the prosecuting attorney about his testimony, due process required that the prosecuting attorney 'speak up if a false statement is made.' In Napue v. People of State of Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217, it was held that 'a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment, * * *. The same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears.' It was further held that the principle 'that a State may not knowingly use false evidence, including false testimony, to obtain a tainted conviction, implicit in any concept of ordered liberty, does not cease to apply merely because the false testimony goes only to the credibility of the witness.' It is the above language in the Napue case upon which appellant principally relies.

Appellant's contention is without merit for at least two reasons. Assuming, but certainly not deciding or even implying, that there was a duty on the prosecuting attorney in the circumstances of this case to speak up when Shoemaker made a categorical denial that he had discussed his testimony with the prosecuting attorney, the record shows that the prosecuting attorney did then and there without any delay speak up and present the question as to what testimony reference was being made. Counsel for appellant then continued his cross-examination, apparently to show precisely to what testimony reference was being made, and Shoemaker admitted that he was told that if he testified against appellant he could not be 'promised anything, that it was up to the judge,' that he was told that the fact he testified 'would be considered seriously;' that he was not told 'just what was going to be recommended;' and that he was not told by the prosecuting attorney 'that he would recommend anything.' The sequence of the questions and their substance clearly and unquestionably indicate that in making his answers Shoemaker was referring to what was and was not told to him by the prosecuting attorney. Appellant does not contend on his appeal, nor has he contended at anytime so far as we are able to ascertain, that the above testimony of Shoemaker concerning promises made or not made to him by the prosecuting attorney or anyone else is true. Certainly, there is no...