State v. Jacobson
| Decision Date | 10 June 1941 |
| Docket Number | No. 37478.,37478. |
| Citation | 152 S.W.2d 1061 |
| Parties | THE STATE v. A.R. JACOBSON, Appellant. |
| Court | Missouri Supreme Court |
Appeal from Newton Circuit Court. — Hon. Emory E. Smith, Judge.
AFFIRMED, BUT DEFENDANT DISCHARGED.
Homer A. Cope, Cope & Hadsell, Walter A. Raymond and Arthur L. Ross for appellant.
(1) The pardon of the Governor, the minutes of the Board of Probation and Parole, together with the evidence presented to said board and the Governor, are properly before this court even though they are evidence of occurrences subsequent to the time of trial. Dulaney v. Buffum, 173 Mo. 1, 73 S.W. 125; Miller v. Collins, 328 Mo. 313, 40 S.W. (2d) 1062; Miller v. Continental Assur. Co. of America, 233 Mo. 91, 134 S.W. 1003; Buchanan v. Rechner, 333 Mo. 634, 62 S.W. (2d) 1071. (2) The case is not moot. Commonwealth v. Fleckner, 167 Mass. 13, 44 N.E. 1053; Roby v. State, 96 Wis. 667, 71 N.W. 1046; Eighmy v. The People, 78 N.Y. 330; State ex rel. Lopez v. Killigrew, 202 Ind. 397, 174 N.E. 808; State v. Winthrop, 148 Wash. 526, 269 Pac. 793; In re Lincoln, 283 Pac. 965; People v. Chamness, 288 Pac. 20; People v. Jennings, 135 Misc. Rep. 809, 240 N.Y. Supp. 91; Freuhwirth v. Burrough of So. Amboy, 68 Atl. 1075; Johnson v. State, 177 Ala. 424, 55 So. 226; State v. Smiley, 98 Mo. 605, 12 S.W. 247.
Roy McKittrick, Attorney General, and Tyre W. Burton, Assistant Attorney General, for respondent.
(1) The verdict is sufficient in form and is responsive to the charge. State v. Meadows, 55 S.W. (2d) 959, 331 Mo. 533; State v. Karlowiski, 142 Mo. 463, 44 S.W. 244; State v. Highly, 102 S.W. (2d) 563; State v. Pierce, 136 Mo. 34, 37 S.W. 815; State v. Clark, 147 Mo. 20, 47 S.W. 886; State v. Lovitt, 147 S.W. 484, 243 Mo. 510; Park v. State, 16 S.W. 632. (2) Qualifications of expert witness is largely in the discretion of the trial court. 22 C.J. 526, sec. 610; Ternetz v. St. Louis Lime & Cement Co., 252 S.W. 65; State ex rel. Highway Comm. of Mo. v. Williams, 61 S.W. (2d) 538, 227 Mo. App. 196; City Service Gas Co. v. Peak, 54 S.W. (2d) 482; State v. Long, 22 S.W. (2d) 809, 324 Mo. 205; State v. Fitzgerald, 201 S.W. 86. (3) The court did not err in permitting Burson to testify that the note and mortgage held by the bank, signed W.E. Brown, was signed by the defendant. Winkle v. Peck Dry Goods Co., 112 S.W. 1026, 132 Mo. App. 656. (4) Assignments in motion for new trial do not prove themselves. State v. Adams, 318 Mo. 712, 300 S.W. 738; State v. Kelly, 107 S.W. (2d) 19; Sec. 4084, R.S. 1939. (5) Expert witness may state facts upon which his opinion is based and may testify in regard to differences or similarity of letters or words and in regard to any matter appearing on the face of the writings. State v. Stegner, 276 Mo. 427, 207 S.W. 826; Sec. 1915, R.S. 1939. (6) The opinions of expert witnesses are admissible even though they are conclusions. 22 C.J. 632, sec. 728; State v. Kennedy, 108 S.W. (2d) 384. (7) General assignment of error will not be reviewed. Sec. 4125, R.S. 1939; State v. Kenyon, 343 Mo. 1168, 126 S.W. (2d) 245; State v. Wright, 342 Mo. 58, 112 S.W. (2d) 571; State v. King, 119 S.W. (2d) 277, 342 Mo. 975. (8) There was sufficient substantial evidence to support the verdict. State v. Frazier, 339 Mo. 966, 98 S.W. (2d) 707; State v. Gregory, 339 Mo. 133, 96 S.W. (2d) 47; State v. Affronti, 292 Mo. 53, 238 S.W. 106.
This case, in which appellant was convicted of forgery, originated in the Circuit Court of Lawrence County. At the September, 1938, term thereof, he was tried and the jury was unable to reach a verdict. At the January Term, 1940, defendant's application for a change of venue was sustained, and the venue awarded to Newton, a county in the same judicial circuit. A trial in the latter county at the June, 1940, term resulted in a verdict finding defendant guilty and assessing his punishment at a term of five years in the penitentiary. After an unavailing motion for a new trial, sentence was pronounced and judgment entered in conformity with the verdict, and he appealed.
At the time the case was reached for oral argument, defendant had filed no brief, although the State's brief was on file, as well as its motion to dismiss the appeal. The motion to dismiss is based upon the fact that on January 7, 1941, pending the appeal, or, more accurately, during the pendency of the appeal [State v. Huhn, 346 Mo. 695, 142 S.W. (2d) 1064], and while defendant was incarcerated under the judgment, he was granted an unconditional pardon by the Governor; the State's contention being that, by accepting the pardon, defendant has waived his right of appeal. Defendant requested, and was granted leave to file a brief, and the case was submitted accordingly. Within the time limited, he filed his brief, as well as a motion for leave to file certain exhibits, which are said to constitute newly discovered evidence, and upon which the Board of Probation and Parole recommended, and the Governor issued, the pardon.
I. The State's motion to dismiss presents a case of first impression in this jurisdiction. In fact, I have been unable to find a reported case elsewhere involving facts substantially parallel to those in the case at bar. It seems Oklahoma has dealt frequently with the general question, and, so far as I am able to discover, there are more decisions touching it in that state than in all the others combined. In Bean v. State (Okla. Crim.), 208 Pac. 834, Foster v. State (Okla. Crim.), 252 Pac. 450, Stout v. State (Okla. Crim.), 258 Pac. 1054, and Nicholson v. State (Okla. Crim.), 100 Pac. (2d) 896, it appears that on appeal the defendant interposed a pardon, and, on his motion, the appeal was dismissed. The most extreme statement of the rule in relation to the effect of a pardon pending an appeal is found in 20 R.C.L., sec. 45, p. 560, as follows: "Where an appeal is taken and, pending appeal, a pardon is granted and accepted, the appellant thereby waives all his rights upon the appeal, and when brought to the attention of the appellate court the appeal will be dismissed." This would seem to be direct authority in support of the State's position. But, like each of the foregoing Oklahoma cases, the supporting cases cited in the footnotes disclose that in every instance, save one; the pardon was interposed in the appellate court by the defendant. [People v. Marsh, 125 Mich. 410, 84 N.W. 472, 84 Am. St. Rep. 584, 51 L.R.A. 461; Gilmore v. State, 3 Okla. Crim. 639, 108 Pac. 416, 139 Am. St. Rep. 981; State v. Goddard, 69 Ore. 73, 133 Pac. 90, 138 Pac. 243, Ann. Cas. 1916A, 146.] The Goddard case, supra, is the exception noted, and there the state moved to dismiss the appeal, and was overruled for the reason defendant was not shown to have accepted the terms of a parole granted by the judgment of conviction. .] These observations are not to be understood as indicating a view that a pardon granted pending an appeal may not be invoked by the State as the foundation of a motion to dismiss in a proper case.
In Lime v. Blagg, 345 Mo. 1, 131 S.W. (2d) 582, the court en banc gave approval to definitions of the term "pardon," as follows: "A pardon, as defined in 20 R.C.L., sec. 1, p. 521, is `a declaration on record by the chief magistrate of a state or country that a person named is relieved from the legal consequences of a specific crime;' or, as stated in 46 C.J., sec. 1, p. 1181, `a pardon is an act of grace proceeding from the power intrusted with the execution of the laws, which exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed.'" Moreover, "as the very essence of a pardon is forgiveness or remission of penalty, a pardon implies guilt." [46 C.J., sec. 32, p. 1193.] A pardon "carries an imputation of guilt; acceptance a confession of it." [20 R.C.L., sec, 4, p. 523.] (Italics ours.) A pardon "affirms the verdict and disaffirms it not." [Searle v. Williams, Hob. 288, 293.] These definitions and connotations point to the reason for the rule announced by the text. Accordingly, it has been held that a party may not accept a benefit based on the legality of a judgment, and thereafter be heard to complain that the judgment is erroneous. He may not so attack the judgment because by asking and accepting executive clemency he said, in effect, that he was rightly convicted. He may not admit guilt to escape imprisonment, and at the same time protest innocence to avoid payment of fine and costs. But see Eighmy v. Peo., 78 N.Y. 330, holding the fact that the accused had received a pardon would not authorize the dismissal of his writ of error because injury may be presumed from the judgment until reversed, as the infamy and discredit to which he is subjected by it will remain.
Do the facts of the instant case call for the application of the principle that the acceptance of a pardon amounts to a waiver of the defendant's rights on appeal? The instrument evidencing the pardon issued by the Governor (the deed or charter of pardon, as it is sometimes called) recites on its face that it was granted "Upon the attached recommendation of the Board of Probation and Parole, and because of the fact that I am convinced that this man is not guilty. ..." (Italics ours.) We need not pause to determine the legal effect of the italicized language. It is sufficient to say that it would be harsh and ironical to imply a confession of guilt from the fact of acceptance of such a pardon. It is sometimes the case that the only redress open to an innocent man is through a pardon. Here the Governor deemed defendant a fit subject for executive clemency because he thought him not guilty. There is no inconsistency whatever in the defendant accepting such a pardon and at the same time denying his...
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