State v. Johnson

• Decision Date: 19 October 1933
• Docket Number: No. 32707.,32707.
• Citation: 63 S.W.2d 1000
• Parties: THE STATE v. F.W. JOHNSON, Appellant.
• Court: Missouri Supreme Court

63 S.W.2d 1000

THE STATE v. F.W. JOHNSON, Appellant.

No. 32707.

Supreme Court of Missouri.

Court en Banc, October 19, 1933.

Appeal from Boone Circuit Court. — Hon. H.A. Collier, Judge.

REVERSED AND REMANDED.

Roy McKittrick, Attorney-General, and Franklin E. Reagan, Assistant Attorney-General, for respondent.

(1) Instruction 4 relating to admissions of defendant was in proper form. State v. Sattley, 131 Mo. 490; State v. Knowles, 185 Mo. 176; State v. Hayes, 262 S.W. 1034. Instruction 5 relating to the credibility of witnesses is in proper form. State v. Knost, 207 Mo. 18; State v. Hart, 56 S.W. (2d) 592; State v. Hamilton, 263 S.W. 130. (2) Proof of the forger's identity is not necessary to sustain a charge of uttering a forged instrument. State v. Thompson, supra.

WESTHUES, C.

We have adopted, with slight modifications the following statement of the case, found in the State's brief:

"On September 5, 1931, the Prosecuting Attorney of Boone County, Missouri, filed in the Circuit Court an information in two counts charging appellant in the first count with forgery of a $15 check, and in the second count, with the uttering of said check to C.M. Robinson, operating the Columbian Hotel, Columbia. Missouri. The check was dated July 3, 1931, and was drawn on the Farmers Bank of Bowling Green, Missouri, and payable to appellant for $15 and purported to be signed and executed by H.B. Millerton.

"Appellant was accorded a preliminary hearing bound over to the Circuit Court for trial, and October 28, 1931, answered ready for trial; was duly tried and found guilty by a jury on the second count of uttering the forged check in question, but acquitted on the first count of actually forging the check. Timely motion for a new trial was filed, heard by the court, overruled, and appellant sentenced to four years in the State Penitentiary, and now brings this appeal.

"C.M. Robinson owned, lived at and operated the Columbian Hotel, Columbia, Missouri. She first became acquainted with the appellant March 15, 1931, when he began staying at the hotel. Appellant was a salesman, engaged in the manufacture and sale of Puro-Kake, an odor absorbing compound for ice boxes, and made the hotel his base of operations. Appellant left Columbia, Missouri, the later part of June, 1931, and returned a few days later about July 3 or 4, 1931, at which time, he cashed the check in question at the hotel and with his wife left the hotel July 5, 1931, and asked that a room be reserved for his wife, son and daughter, who would be there in a few days. A check for $15 was tendered in payment of appellant's hotel bill, $10.34 and appellant received $4.66 in money. The check was endorsed in the presence of witness. C.M. Robinson, and had been filled out in the handwriting of the appellant with the exception of the signature, H.B. Millerton. The check was deposited in the Exchange National Bank, Columbia, Missouri, on the following Monday, July 7, 1931, from which bank it was returned, `Protested' a few days later. Other checks drawn on other people had been cashed by appellant at this hotel and paid.

"The Notary Public, Mary Blondet, who protested this check, was Assistant Cashier of the Farmers Bank, a banking corporation of Bowling Green, Missouri, and had lived at Bowling Green all of her life. She was acquainted with the names of various depositors in said bank and testified that in July, 1931, H.B. Millerton was not a depositor in said bank; that she never heard of anyone by that name in that County. The check and the protest notice were introduced in evidence without objection.

"Henry C. Carroll, Sheriff of Pike County, had lived in Pike County practically all of his life and was well acquainted in Edgewood, a small town, ten miles South of Bowling Green. A few days prior to the trial he went to Edgewood in an effort to serve a State subpoena on H.B. Millerton, but was unable to find any H.B. Millerton, and while there went to a small white, weather-boarded, frame house, the second house located on the right side of the road after you leave the highway going into Edgewood from Bowling Green and found a man living there by the name of Ogden.

"Appellant was arrested in Hannibal, Missouri, and returned by Deputy Sheriffs, Charles Whitworth and Harry Armstrong to Columbia, Missouri, for trial. On the road to Columbia, Missouri, appellant stated that he knew no one by the name of H.B. Millerton, but said he knew a man by the name of Middleton who was in the ice business at Bowling Green, Missouri. The following day appellant stated to Deputy Sheriffs Whitworth and Armstrong that he received the check in question from H.B. Millerton who lived in Edgewood, near Bowling Green, Missouri, and described Millerton's residence as a small, white, weather-boarded frame house, the second house located on the right side of the road after you leave the highway going into Edgewood from Bowling Green; that all of the check was in his handwriting except the signature, H.B. Millerton. This testimony of Charles Whitworth Deputy Sheriff, as to appellant's statements was corroborated by Harry Armstrong.

"All subpoenas issued for witnesses on the part of appellant and the State were introduced in evidence, but no subpoena had been issued for the defendant for the witness, H.B. Millerton. Appellant testified that he was forty-three years old, lived in Kansas City, Missouri; that his business was the manufacture and sale of Puro-Kake, a preparation to eliminate the contamination of food odors in refrigerators and that he sold said product in a number of cities in Missouri, and employed others as salesmen; that on the average he would sell from six to ten orders daily for cash on delivery; sometimes receiving checks, some of which were cashed at the Columbian Hotel; and on July 4th, he cashed the check in question at the Columbian Hotel, took his wife to Kansas City but returned to Columbian Hotel on the night of July 8, 1931, and left the next morning; and before leaving he reserved rooms at the hotel for the following week and left considerable clothing and Puro-Kake boxes there; that from Columbia he went to Hannibal, Missouri, where he lived with H.B. Miller for about three weeks; that he received the $15 check in question July 3, 1931, for one hundred Puro-Kakes; that said sale was made in Bowling Green, Missouri, to Mr. Millerton, who had answered a blind ad; that he saw Millerton the first time on July 1st, and again on the morning of July 3rd in Bowling Green; that he delivered one hundred Puro-Kakes at Edgewood near Bowling Green to Millerton at a white house, the second from the corner after you turn off of the highway going into Edgewood, and received the check about 5:30 in the afternoon. Appellant further testified that he kept duplicate sale tickets of the sale to Millerton; that Millerton was a tall, slim fellow about six feet in height and wore glasses and had a little moustache. Appellant denied telling officers Whitworth and Armstrong that he did not know anyone by the name of Millerton, but that Millerton was waiting in an automobile in front of the white house when he delivered the Puro-Kake; that Millerton produced the blank check from his inside pocket, handed it to appellant, and appellant filled it out and handed it back to Millerton who signed it, H.B. Millerton; that Millerton put the Puro-Kakes in the back of his car parked in front of the little white house as appellant left him in Edgewood; that appellant knew H.B. Middleton and son of Bowling Green.

"Defense witness, W.B. Middleton of Bowling Green testified that he was in the ice business there and knew appellant since July 1, 1931; and that he lived in Bowling Green twenty years but did not know anyone by the name of H.B. Millerton. H.A. Miller of Hannibal, Missouri, testified that he knew appellant and identified certain sales tickets used in appellant's business; that he had worked for appellant but had not been paid for his work.

"In rebuttal, Ray Whitesides, Clerk of the Columbian Hotel, testified he knew appellant and that appellant's reputation for truth and veracity in the community was bad. Appellant's reputation for truth and veracity was also impeached by W.G. Hagerman, a minister and by four additional witnesses."

Appellant has not filed a brief in this court. We will look to the motion for new trial for points preserved for our review.

[1] A number of the assignments of error pertain to the sufficiency of the evidence to sustain a conviction. The above statement of facts reveals that the evidence in the record was sufficient for the jury to find appellant guilty of uttering a forged instrument with intent to defraud, as denounced by Section 4183, Revised Statutes 1929. [State v. Thompson, 1 S.W. (2d) 151, 318 Mo. 623.]

[2] Instruction No. 4 is assailed. It reads as follows: "The jury are instructed that any verbal statements of the defendant and that have been proven in this case, you may take them into consideration, with all the other facts and circumstances proven. What the evidence may show you, if anything, that the defendant has said against himself, is presumed to be true, because against himself; but anything you may believe from the evidence the defendant said in his own behalf, you are not obliged to believe, but you may treat the same as true or false, just as you believe it true or false, when considered in its relation to all the other facts and circumstances in the case."

The specific objection made to this instruction is that it failed to inform the jury that defendant was entitled to what he said for himself, if true, and also failed to require the jury to consider the whole of any statement or statements made by defendant. The objection is well taken. In the State's brief the cases of State v. Sattley, 131 Mo. 464, l.c. 490, 33 S.W. 41; State v. Knowles, 185 Mo. l.c. 176, 83 S.W. 1083; State v. Hayes, 262 S.W. 1034, are cited as authorities...