State v. Gullette

• Decision Date: 08 May 1894
• Parties: The State v. Gullette, Appellant
• Court: Missouri Supreme Court

26 S.W. 354

121 Mo. 447

The State v. Gullette, Appellant

Supreme Court of Missouri, Second Division

May 8, 1894

Appeal from Gentry Circuit Court. -- Hon. C. A. Anthony, Judge.

The defendant was convicted of forgery in the third degree, and his punishment assessed at two years imprisonment in the penitentiary, and he appeals to this court.

The indictment is bottomed on section 3641, Revised Statutes 1889, and, omitting caption, is as follows: "The grand jury for the state of Missouri, summoned from the body of said Gentry county, impaneled, charged and sworn upon their oaths, present that Fred Gullette, late of the county aforesaid, on the thirtieth day of September, 1893, at the said county of Gentry, state aforesaid, unlawfully and feloniously did falsely make and forge a certain instrument in writing, to wit, an order purporting to be the act of one Anthony Coppersmith, by the name of Mr. A. A. Coppersmith, by which a pecuniary demand and obligation purported to be created, which said false and forged instrument and order is of the tenor following, that is to say: 'Stanberry, Sept 30, 1893. Dear Sir: Please sell this young man, Fred Gullette, one pair of pants, one pair of shoes, one suit of underwear, and charge to my account. Mr. A. A Coppersmith.' With intent then and there and thereby unlawfully and feloniously to injure and defraud against the peace and dignity of the state.

"And the grand jurors aforesaid, on their oaths aforesaid, do further present that Fred Gullette, late of the county of Gentry, and state of Missouri, on the thirtieth day of September, 1893, at the said Gentry county and state of Missouri, then and there feloniously did forge and counterfeit and falsely make a certain false, forged and counterfeit instrument, writing and order, purporting to be made by Mr. A. A. Coppersmith, a fictitious person, by which a pecuniary demand and obligation purported to be created which said false, forged and counterfeit instrument writing and order is of the tenor following, that is to say: 'Stanberry, Sept. 30, 1893. Dear Sir: Please sell this young man, Fred Gullette, one pair of pants, one pair of shoes, one suit of underwear, and charge to my account. Mr. A. A. Coppersmith.' With intent then and thereby unlawfully and feloniously to injure and defraud, and against the peace and dignity of the state.

"And the grand jurors aforesaid, on their oaths aforesaid, do further present that Fred Gullette, late of the country of Gentry, in the state of Missouri, on the thirtieth day of September, 1893, at the county of Gentry, and state of Missouri, unlawfully and feloniously did then and there falsely make, counterfeit and forge a certain instrument in writing, to wit: an order and request purporting to be the act of one Anthony Coppersmith, by the name of Mr. A. A. Coppersmith, by which a pecuniary demand and obligation for the payment of money by the said Anthony Coppersmith, by the name of Mr. A. A. Coppersmith, purported to be created, which said false, forged and counterfeit instrument in writing and order is of the tenor following, that is to say: 'Stanberry, Sept. 30, 1893. Dear Sir: Please sell this young man, Fred Gullette, one pair of pants, one pair of shoes, one suit of underwear, and charge to my account. Mr. A. A. Coppersmith.' With intent then and there, and thereby unlawfully and feloniously, to injure and defraud against the peace and dignity of the state."

The evidence in the bill of exceptions made up in short form, as is sometimes done in civil cases, is the following: The state produced testimony tending to prove that on the thirtieth day of September, 1893, there were only two men by the name of Coppersmith who resided in or near Stanberry, Gentry county, Missouri. One Anthony Coppersmith, a farmer, who lived just north of the corporate limits of said town of Stanberry, the other Sebastian Coppersmith, a farm hand who worked for said Anthony Coppersmith. That on the thirtieth day of September, 1893, defendant went into the store of D. W. Herrick in said town of Stanberry, and presented to Wm. Riggins, a clerk in said store, an order similar to the one set out in each count of the indictment, except it was signed, Mr. Coppersmith. This order the clerk refused to accept for the reason that the initials were omitted in the signature to the order. Defendant then remarked that Mr. Coppersmith was at a blacksmith shop in another part of town and that he would go and have him sign the order properly. Defendant then left the store. In about an hour he returned with the order described in the indictment, signed or purporting to be signed "Mr. A. A. Coppersmith" and obtained the goods named in the order, telling D. W. Herrick that he, the defendant, had been working for Mr. Coppersmith just north of town nineteen days. That Anthony Coppersmith did not sign the order described in the indictment, nor had he ever seen or heard of the defendant at the time the order was presented to and accepted by Herrick. That after his arrest, defendant admitted that he had never seen Mr. Coppersmith, that he learned from a stranger that Mr. Coppersmith was a prominent farmer living in the vicinity of Stanberry. That Anthony Coppersmith had no account with D. W. Herrick, and was not indebted to him for goods or otherwise.

The state also introduced evidence tending to prove that the defendant after his arrest, charged with the forgery of said order, admitted that he had never seen Coppersmith and that he found out there was a prominent man by that name living near Stanberry from a stranger. That he "could not get work and must have clothes." The prosecuting attorney then offered to introduce in evidence the following described order set forth in each count in the indictment, to wit: Stanberry, Sept. 30, 1893. Dear Sir: Please sell this young man, Fred Gullette, one pair of pants, one pair of shoes, one suit of underwear and charge to my account. Mr. A. A. Coppersmith."

The defendant objected and excepted to the introduction of this order in evidence. No evidence was introduced for the defense.

At the conclusion of the evidence the court, whether at the instance of the prosecuting attorney, or of its own motion does not appear, gave the following instructions:

"1. If the jury believe from the evidence that Fred Gullette, the defendant, at any time within three years next before the eleventh day of December, 1893, at Gentry county, Missouri, did falsely and fraudulently forge and make the written instrument described in the second count of the indictment and read in evidence, and that said written instrument purported to be the act of Mr. A. A. Coppersmith, and that Mr. A. A. Coppersmith is a fictitious person, then the jury will find the defendant guilty as charged in the second count of the indictment, and assess his punishment at imprisonment in the penitentiary for a term not less than two years nor more than seven years.

"2. If the jury believe from the evidence that Fred Gullette, the defendant, at any time within three years next before the eleventh day of December, 1893, at Gentry county, Missouri, did falsely and fraudulently make, counterfeit and forge the instrument in writing described in the third count of the indictment and read in evidence and that said order purported to be the act of Anthony Coppersmith by the name of Mr. A. A. Coppersmith, then you will find the defendant guilty as charged in the third count of the indictment, and assess his punishment at imprisonment in the penitentiary for a term of not less than two nor more than seven years.

"3. The jury are further instructed that it is not necessary to prove that defendant was guilty by testimony of witnesses who may have seen the offense committed. His guilt may be shown by proof of facts and circumstances from which it may be reasonably and satisfactorily inferred."

To the giving of these instructions the defendant excepted at the time, and also in like manner excepted to the refusal of the court to give this instruction:

"The court instruct the jury that although you may believe from the evidence that the defendant made, forged and counterfeited the order introduced read in evidence and that the defendant when he made, forged and counterfeited said order read in evidence, intended to make, forge and counterfeit an order to resemble and be like a genuine order of the said Anthony Coppersmith, and that he passed said order as a true genuine order of said Anthony Coppersmith with the intent to injure and defraud, yet if the jury further believe from the evidence that said order so made and read in evidence (upon its face had no resemblance to a true and genuine order of) Anthony Coppersmith and that said order would not deceive or mislead a person of ordinary prudence, then there is no forgery in the case and the jury will find the defendant not guilty under each and every count in the indictment."

In the motion for a new trial, the giving of the instructions aforesaid on behalf of the state and the refusal of that on the part of defendant are properly preserved, as well as an exception to the denial of that motion.

Reversed and remanded.

Charles O. Patton for appellant.

(1) No prudent man would have accepted the order upon which this prosecution is based. It was not directed to any particular person. It was signed Mr. A. A. Coppersmith -- there being no such person as A. A. Coppersmith in all that country. Besides, the first order presented for acceptance was signed Mr. Coppersmith. Under these circumstances, the court should have given instruction number 2 asked on behalf of defendant. State v. Warren, 109 Mo. 430. (2) The court below committed error, resulting in defendant's conviction, in giving instructions for the state number...