State v. Johnson

• Decision Date: 28 October 1933
• Citation: 64 S.W.2d 655,334 Mo. 10
• Parties: The State v. T. I. Johnson, Appellant
• Court: Missouri Supreme Court

64 S.W.2d 655

334 Mo. 10

The State v. T. I. Johnson, Appellant

Supreme Court of Missouri

October 28, 1933

Appeal from Lewis Circuit Court; Hon. Chas. T. Hays Special Judge.

Reversed and remanded.

A. F Haney, N.W. Simpson and Charles D. Stewart for appellant.

(1) The trial court erred in admitting in evidence over the objection of defendant's counsel, as the basis of the prosecution the note (State's Exhibit A), it being different from the copy of the note set out in the indictment. In State v. Fry, 65 Mo. 490, it is held that when the indictment sets out the instrument alleged to be forged in haec verba, it should be described accurately and very slight inaccuracies will be fatal. An indictment described the instrument as a note for $ 60 signed with the name James C. Orr, whereas the instrument in evidence was a note for $ 60 bearing interest at ten per cent from date and signed J. C. Orr. Held a fatal variance both as to the name of the supposed maker and the liability of the supposed maker. In State v. Smith, 31 Mo. 120, it was held that where the note was described specifically the proof must conform to the allegation. In the description in this indictment the name of the president of the bank was Jas. T. Watson, but according to the proof it was James T. Watson. Held a fatal variance. To same effect, State v. Chamberlin, 76 Mo. 389. In State v. Andrew, 249 S.W. 63, the information for uttering a forged instrument charges that three names were forged, but the only issue under the evidence was the genuineness of one of the signatures, the other signatures being admittedly genuine, and it was held by this court that there was a variance between the allegation and the proof. In the case at bar there is a decided variance between the copy of the note set out in the indictment and the note admitted in evidence. The note in evidence at its lower left hand side contains the explanatory words "farm acct." (2) The trial court erred in admitting in evidence, over the objections of defendant, the letters from W. M. Hilbert and Lane B. Henderson to the LaGrange Savings Bank, in which they deny that they executed the note set out in the indictment. The admission of said letters was erroneous, because they were self-serving statements and were statements made by the prosecuting witnesses outside of the presence of the defendant, and, further, were incompetent and irrelevant to prove any issue in the case or to convict the defendant of the charge in the indictment. All of these objections were raised by the defendant's counsel to the introduction of these letters. These letters constitute declarations made by the prosecuting witnesses not made in the presence of the defendant. Letters written by the prosecuting witness are not admissible, being mere hearsay. State v. Adams, 108 Mo. 208, 18 S.W. 1001. Declarations made by the injured party unless made in the presence of defendant or are admissible as a part of the res gestae, are hearsay and inadmissible. State v. Blackburn, 275 Mo. 469, 201 S.W. 99; State v. Wilson, 250 Mo. 323, 157 S.W. 315; State v. Hollingsworth, 156 Mo. 178, 56 S.W. 1090; C. J., Art. Criminal Law, Sec. 1269. (3) In State v. Slusher, 253 S.W. 819, State Instruction 2 instructed the jury that if they found that defendant did unlawfully and feloniously take, steal and carry away the boat described in evidence belonging to B. H. Spitler with the intention to convert said boat to defendant's use and deprive the owner thereof they will find the defendant guilty of grand larceny. The Supreme Court held: "The vice of the instruction is that it purports to cover the whole case and authorizes a verdict without taking into consideration the defenses offered by the defendant to the effect that he bought the boat -- came by it honestly. The court, in Instruction 2, undertook to instruct upon the entire case and authorized a verdict, and in doing so did not instruct on all questions of law arising from the evidence, and therefore was erroneous." In State v. Gabriel, 266 S.W. 707, Instruction 1 on the part of the State, purporting to cover the entire case ignored the defense of self-defense, the court said: "The instruction was therefore erroneous and constitutes reversible error, . . . separate instructions on self-defense given by the court did not cure this error." State v. Welch, 278 S.W. 759. In State v. Cantrell, 234 S.W. 802, the court held: "Whenever the court in a criminal case undertakes to instruct on a question of law for the guidance of the jury in giving their verdict, the instruction should guide them fairly, should present both sides of a proposition if, it has two sides," this is so whether the attention of the court is drawn to the matter by a request from either the State or the defendant, or whether the court proceeds upon the matter" of its own motion.

Roy McKittrick, Attorney-General, and Wm. Orr Sawyers, Assistant Attorney-General, for respondent.

(1) The indictment is sufficient in form and substance and follows the language of the statute. Secs. 3556, 4190, R. S. 1929; State v. Todd, 248 S.W. 939; State v. Jackson, 90 Mo. 156, 2 S.W. 128; State v. Bell, 212 Mo. 129. (2) The verdict finds the defendant guilty as charged in the indictment and assesses his punishment within the statutory limits. Secs. 4190, 4205, R. S. 1929; State v. Todd, supra. (3) The evidence was sufficient to take the case to the jury. (a) Exhibit A was rightfully admitted in evidence. Sec. 3562, R. S. 1929; State v. Jackson, 221 Mo. 506; State v. Jackson, 90 Mo. 156, 2 S.W. 128; State v. Karlowsky, 142 Mo. 463. (b) Exhibits B, C, D, E, and F were rightfully admitted in evidence. State v. Adams, 108 Mo. 208, 18 S.W. 1000; State v. Blackburn, 273 Mo. 469, 201 S.W.2d 96; Vanansdale v. Bank of Odessa, 5 S.W.2d 117; Prudential Ins. Co. v. Devoe, 56 A. 810; State v. Hollingsworth, 56 S.W. 1087, 156 Mo. 178; State v. Ilgenfritz, 173 S.W. 1041. (c) Said Exhibits E and F improperly admitted in evidence would still not be reversible error. State v. Sasseen, 75 Mo.App. 201; State v. Emery, 76 Mo. 349; State v. Hutchens, 271 S.W. 530; State v. Moreaux, 224 Mo. 409. (d) The admission of testimony of defendant making another forged note was not error. State v. Hodges, 144 Mo. 53. (e) An agent for one purpose may commit forgery in improper exercise of authority. State v. Tull, 119 Mo. 421, 24 S.W. 1010; State v. Hodges, 144 Mo. 54, 45 S.W. 1093. (4) Defendant waived his demurrer to the evidence at the close of State's case. State v. Jackson, 283 Mo. 24, 222 S.W. 746; State v. Cummings, 248 Mo. 518, 154 S.W. 725. (5) The court did not err in giving Instructions P-1 and P-4. State v. Wilson, 223 Mo. 171. (a) The court did not err in refusing Instructions D-1, D-2, D-3 and D-4. State v. Moreaux, 254 Mo. 413, 162 S.W. 158; State v. Weinberg, 245 Mo. 574, 150 S.W. 1069.

Leedy, J. Ellison, P. J., and Tipton, J., concur.

OPINION

LEEDY

Appellant was convicted at the November, 1931, Term of the Circuit Court of Lewis County, under an indictment charging him with forgery in the third degree. His punishment was assessed by the jury at imprisonment in the penitentiary for a term of two years, and from the sentence and judgment rendered in accordance with the verdict, he has appealed.

The indictment was drawn in two counts, but at the close of the State's evidence, it elected to stand on the first count thereof, which charged an offense under Section 4190, Revised Statutes 1929 (Sec. 4190, Mo. Stat. Ann., p. 2943), and that appellant, on or about December 1, 1928, did "unlawfully, feloniously and wilfully forge, counterfeit and falsely make a certain false, forged and counterfeited promissory note . . . purporting to be the act of another and which . . . purported to create a pecuniary demand and obligation . . . of the purport and effect as follows:

"$ 2400.00

LaGrange, Mo., Dec. 1st, 1928

"SIX MONTHS after date we promise to pay to

LaGRANGE SAVINGS BANK, or order

Twenty Four hundred :o/100 Dollars, for value received, negotiable and payable without defaulcation or discount, with interest at the rate of 6 per cent per annum from date, until paid. Interest payable annually, and if not so paid to be added to and become part of the principal and bear the same rate of interest.

"The makers signers and endorsers of this note severally waive demand, notice and protest and agree to all extensions and partial payments, before or after maturity, without prejudice to the holder.

"No.

P. O., Monticello, Mo.

W. M. Hilbert

31524

Due -- June, 1st, 1929

Lane B. Henderson

"And afterwards, the said T. I. Johnson wrote on said note following the purported signatures of W. M. Hilbert and Lane B. Henderson the following: 'Farm Acct. Johnson-Hilbert & Henderson.' with the felonious intent then and there to injure and defraud," etc.

At the time the indictment was returned, as well as at the time of the trial, Mr. Walter M. Hilbert, one of the prosecuting witnesses, was Prosecuting Attorney of Lewis County, and he being disqualified to act in such capacity, a special prosecutor was duly appointed and qualified, who conducted the grand jury investigation which resulted in the returning of the indictment herein, and the prosecution thereof on the part of the State.

The evidence shows that appellant was a lawyer and banker; that he resided at Monticello in Lewis County continuously from 1893 until 1925, and in the latter year removed to LaGrange, in the same county; that thereafter and at the time of the commission of the offense alleged in this case and until September, 1929, he was engaged in business as cashier of LaGrange Savings Bank, which institution closed its doors and suspended business about a year after the date last mentioned.

In 1912, a...