State v. Jett

• Decision Date: 12 December 1927
• Docket Number: 28338
• Citation: 300 S.W. 752,318 Mo. 672
• Parties: The State v. Eliud H. Jett, Appellant
• Court: Missouri Supreme Court

300 S.W. 752

318 Mo. 672

The State v. Eliud H. Jett, Appellant

No. 28338

Supreme Court of Missouri

December 12, 1927

Appeal from Jackson Circuit Court; Hon. James H. Austin Judge.

Affirmed.

North T. Gentry, Attorney-General, and H. O Harrawood, Special Assistant Attorney-General, for respondent.

(1) Defendant's demurrer offered at the close of the State's case was abandoned by the subsequent introduction of testimony on behalf of defendant. Riley v O'Kelly, 250 Mo. 660; State v. Jackson, 283 Mo. 24; State v. Starling, 207 S.W. 767; State v. Cummings, 248 Mo. 518. (2) The demurrer tendered at the close of the whole case was properly overruled by the court. There was substantial evidence tending to prove the guilt of the defendant and sufficient to take the case to the jury. The weight of the evidence and the credibility of the witnesses who testified were matters for the consideration of the jury. State v. Perry, 267 S.W. 832; State v. Yandell, 201 Mo. 662; State v. Long, 257 Mo. 208; State v. Swarens, 241 S.W. 939; State v. Jackson, 283 Mo. 24; State v. Morris, 279 S.W. 141; State v. Henke, 285 S.W. 392; State v. Sissom, 278 S.W. 704. (3) Defendant complains that the court did not grant him a reasonable continuance in which to prepare his defense. He states further in such assignment that he has a good, meritorious defense that the court should set aside the verdict and let him present said defense. No motion for a continuance appears in the record, neither is there any affidavit of surprise, nor any record of an attempt of any kind on the part of defendant to procure a continuance. This assignment is without merit. State v. Williams, 263 S.W. 198; State v. Cain, 247 Mo. 704; State v. Salts, 263 Mo. 304; 16 C. J. 453, sec. 822. (4) Defendant assigns as error "that the court erred in not permitting defendant to prove that he had paid off his civil liability on said alleged forged check of $ 62.50 to one Julius Matlaw mentioned in evidence as soon as he found out that said check was not good." (a) The statement excluded was excluded upon the theory that the paying back of the money did not relieve the party if a crime had been committed. This was a proper ruling. The payment of a civil obligation does not relieve one from criminal liability. It does not matter whether defendant profited by the transaction or not, his intention to defraud is presumed. State v. Douglas, 278 S.W. 1023. If objections were intended by defendant for any other reason or upon any other theory, the language used failed to so express it, and thus no other point was saved. O'Neill v. Kansas City. 178 Mo. 91. (b) This evidence, if admissible at all under any circumstances, could only have been admissible upon the theory that it tended to show a lack of criminal intent upon the part of defendant. "One who intentionally violates a criminal law which he is conclusively presumed to know cannot be heard to say that he had no criminal intent in doing so." State v. Silva, 130 Mo. 440; State v. Conley, 280 Mo. 25; State v. Lentz, 184 Mo. 241; State v. Horner, 48 Mo. 520; State v. Patterson, 116 Mo. 513. (c) This was a self-serving statement and its exclusion would not be reversible error. Swope v. Ward, 185 Mo. 316. (d) The particular statement excluded was not material matter. Its exclusion was not prejudicial to defendant's interest, and for this reason, if for no other, the ruling of the court, in so excluding it, was not reversible error. Sec. 1513, R. S. 1919; State v. Feeley, 194 Mo. 300; State v. Kelley, 284 S.W. 802; Sanders v. Association, 178 Mo. 674. (5) Defendant complains that the court should have been given a converse instruction. Defendant was entitled to a converse instruction if he had asked it. No converse instruction was asked by defendant. The court was not required to give it. State v. Rutherford, 152 Mo. 134.

Davis, C. Higbee and Henwood, CC., concur.

OPINION

DAVIS

There was filed in the Circuit Court of Jackson County an indictment in two counts, the first charging defendant with forging a certain check, and the second charging him with having it in his possession on or about November 7, 1925, with intent to defraud and with selling and delivering same with intent to have it uttered and passed. The jury were silent with respect to the first count, but returned a verdict on the second count finding him guilty of uttering a forged instrument as charged, and fixing his punishment at four years' imprisonment in the penitentiary. An appeal was taken from the judgment entered thereon.

The testimony for the State warrants the finding that George Cope in October and November, 1925, was a general contractor residing in Kansas City. Defendant worked for him as a plasterer on a job at Independence, continuing the employment to about November 2, 1925, after working from two to three weeks. Cope paid defendant for his work in cash. At the time of discontinuing the employment, defendant solicited a loan of sixty-five dollars from Cope, which was refused. Thereafter, probably on November 2, 1925, but if not, then on November 7, 1925, defendant entered the store of one Julius Matlaw in Kansas City, who stated that he had many times before cashed for defendant checks ranging from fifty to eighty dollars, which were always found good, and presented a check which we think was dated November 2, 1925, Kansas City, Mo., drawn on Traders National Bank, payable to the order of E. H. Jett for $ 62.50 and signed "Geo. Cope." On the back thereof were the indorsements of E. H. Jett and Julius Matlaw, and the stamped indorsement of the City Bank of Kansas City, with which bank Matlaw made the deposit, showing the date "November 4, 1925." Defendant admitted presenting this check to Matlaw and indorsing it on the back, as well as receiving cash and a credit on his running account. The check was refused clearance and returned to Matlaw with the notation, "No account." George Cope stated that he did not issue or execute the check and that the signature of the maker on it was not his signature. He further stated that he did not do business or have an account with the Traders National Bank, or know its location. Matlaw stated that the Traders National Bank in Kansas City is a banking corporation. He further stated that defendant's reputation for truth, veracity and as a law-abiding citizen was good. He had always found him honest and straight, and in cashing checks for him previously he had always found him to be all right and that is why he never questioned him.

The testimony for the defense tends to establish that defendant knew a negro man by the name of George Cope to whom he had advanced forty-five dollars for the purpose of buying materials for a job, with the understanding that upon the completion of the work defendant was to be returned forty-five dollars, together with onehalf of the profits. George Cope, the negro, gave him the check he negotiated to Matlaw in payment of the forty-five dollars advanced for materials and one-half of the profits of the job. Defendant stated that he had seen the negro but once since the check was given him, to-wit, about November 9, 1925, although he had searched for him without success. Defendant testified that the negro George Cope stated that he lived at 1922 East Fourteenth Street. He further stated that he, the defendant, had worked at 2118 Tracy Avenue.

In rebuttal the State offered in evidence the testimony of a negro woman who stated that she owned the premises at 1922 East Fourteenth Street; that she ran a rooming house and that no negro by the name of George Cope ever lived there. Another witness for the State testified that defendant never worked at 2118 Tracy Avenue. Such other facts as are pertinent, if any, will be later noted.

I. The first assignment of error holds to the contention that the indictment is deficient, uncertain, faulty and bad. As it is rather lengthy, we think it unnecessary to set it forth. We are content with saying that it follows substantively and as nearly as may be State v. Turner, 148 Mo. 206, 49 S.W. 988, in which case an indictment involving the identical statute, to-wit, what is now Section 3430, Revised Statutes 1919, was held good. The only difference between the indictments here and there is that the indictment here charges the sale and delivery of the check, while there it charges the intent to pass and sell same. The indictment as written is sufficient.

II. It may be well to say that as the jury failed to return a verdict of any kind as to the first count, it is equivalent to an acquittal thereon. Error is charged because the trial court refused to direct the jury to acquit defendant. Without the benefit of a brief by defendant, we are deprived of his theory of the assignment. The record contains evidence that defendant presented and negotiated a check to Matlaw, purporting to be drawn by George Cope on the Traders National Bank. Cope denied that he issued the check or signed it. The incorporation of the Traders National Bank was shown to comply with the provisions of Sections 3428 and 3430, Revised Statutes 1919. Upon the deposit of the check by Matlaw payment was refused and it was returned to him with a notation on a separate slip of paper, "No account." It is evident that the above related facts tended to show the check forged and counterfeited. The theory of the defense was not that George Cope, the contractor, signed the check, but that it was the check of George Cope, the negro. This negro was not accounted for as definitely by the defendant as the situation required. From the facts before it the jury were justified in finding that a negro by...