State v. Jones, 50631

• Decision Date: 14 December 1964
• Docket Number: No. 1,No. 50631,50631,1
• Citation: 384 S.W.2d 554
• Parties: STATE of Missouri, Respondent, v. Charles JONES, Appellant
• Court: Missouri Supreme Court

Page 554

384 S.W.2d 554

STATE of Missouri, Respondent, v. Charles JONES, Appellant.

No. 50631.

Supreme Court of Missouri, Division No. 1.

Dec. 14, 1964.

Thomas F. Eagleton, Atty. Gen., Jefferson City, Dale Reesman, Sp. Asst. Atty. Gen., Boonville, for respondent.

Crouch & Fitzgerald, Warrensburg, for appellant.

DALTON, Judge.

Defendant was charged and convicted under the Habitual Criminal Act of the offense of 'forging an endorsement on a writing commonly relied upon in business and commercial transactions,' to wit, a counter check, as hereinafter further described. The Court assessed defendant's punishment at five years' imprisonment in the Missouri State Penitentiary. Section 561.011 RSMo 1959, V.A.M.S. Defendant, being an indigent person, was represented in the trial and on this appeal by court-appointed counsel.

On January 28, 1964, the Court, out of the presence of the jury, heard evidence tending to show that defendant had previously been convicted of a felony, to wit, the offense of wilfully, unlawfully and feloniously stealing a motor vehicle in the State of Missouri, for which he was imprisoned in accordance with the judgment and sentence of two years in an institution designated by the Department of Corrections; however, he was only imprisoned from the 13th day of July, 1962, until the 1st day of February, 1963. The Court found the facts in accordance with the foregoing evidence and determined that the cause must be heard under the Habitual Criminal Act. Under this Act the jury determines the guilt of defendant and, if guilty, the Court assesses the punishment. Section 556.280 RSMo 1959, as amended Laws 1959, S.B. No. 117, V.A.M.S.

The State's evidence tended to show that on February 15, 1963, the defendant, a person about twenty-one years of age, resided at the DeVault Hotel in Warrensburg, Missouri; that on Friday, February 15, 1963, at about 11:30 a. m. defendant went to Nora's Bakery Shop, a business place owned and operated by Mrs. Nora Ginn in Warrensburg. Mrs. Ginn was not present at the particular time, but her employee, Mrs. Shirley Abbott, was in charge. Defendant purchased a dozen doughnuts from Mrs. Abbott and presented a check (State's Exhibit 3), as follows:

'Warrensburg, Mo.

Peoples National Bank of Warrensburg, Mo.

Feb. 14, 1963

No. ________________________%1/8

Pay To The

Order Of Clifford Racy $19.50 nineteen dollars and fifty cents Dollars

James Brown'

Defendant asked Mrs. Abbott if she could cash the check; she agreed, and asked defendant to endorse the check by writing his name, address and phone number on the back of the check. Defendant, thereupon wrote, 'Clifford Racy 106 W. Culton 747.3427.' Mrs. Abbott deducted the price of the doughnuts from the amount of the check and gave the balance in money to defendant.

Early in the afternoon on the same day, Mrs. Nora Ginn, the owner of the shop, learned of the presence of the check and called the telephone number defendant had written on the back of the check. She received no answer, but only a recording, and, thereupon, notified the police. Later, that afternoon or early evening Mrs. Ginn and Mrs. Abbott went to the county jail where Mrs. Abbott viewed four or five persons and identified defendant as the person who had given her the check and written the name 'Clifford Racy' on the back of it. She also identified the defendant at the trial as the person who presented the check and made the mentioned endorsement. On the day following defendant's arrest, Mrs. Ginn presented the mentioned check at the Peoples National Bank of Warrensburg and received no money for it at any time.

The words 'no account' were written across the face of the check by Mrs. Maxine Miller, a machine bookkeeper employed by the mentioned bank; she also wrote her initials on the check. At the time the check was presented to the bank for payment it had two endorsements, the last being the endorsement of Mrs. Nora Ginn. The check in question was what was commonly known as a counter check and was of the type that is generally used and accepted in an ordinary commercial transaction in the community where the check was endorsed and passed.

Clifford Racy, a resident of Warrensburg, residing at the Martin Hotel, 106 1/2 West Culton, testified that the endorsement on the back of the check in question was not his signature; that he did not write it; that he had not seen the check before; and that he did not know any 'James Brown' whose name appeared as maker on the check, nor did he know the defendant. Mr. Racy further testified that he had lost his billfold on the 3rd or 4th of February, 1963. He first missed his billfold on the morning of February 4, 1963, but whether he had lost it the day before, or whether it was taken from his room, he didn't know. When it was located and returned to him his state driver's license was missing. The missing driver's license, however, was found on defendant's person when defendant was arrested by Sheriff William O. Fortney in Warrensburg on the evening of February 15, 1963. The missing driver's license bore an expiration date of 2/11/66 and Mr. Racy had promptly, after its loss, applied for and received a new driver's license. He identified State's Exhibit No. 4 as his missing driver's license.

The defendant offered no evidence.

At the close of the State's evidence the State asked and was permitted to amend its amended information, as filed on October 12, 1963, so as to conform to the proof, by alleging that defendant received the sum of $19.50 in property and money from the check. Defendant's motion for judgment of acquittal presented at the close of the State's evidence was overruled. The jury returned a verdict of guilty, as follows: 'We, the jury, find the defendant guilty of forging an endorsement on a writing commonly relied upon in business and commercial transactions.'

Appellant assigns error on the action of the Court 'in failing to sustain the challenge for cause to juror Sidney Davis.' Appellant insists that his (Davis') association with the complaining witness and the prosecuting attorney, and his prior connection with check offenses, rendered him incapable 'as a matter of law, to be impartial in the trial of this case, and therefore defendant was deprived of a fair trial.'

The record shows that Davis was asked whether he was acquainted with Mrs. Nora Ginn and he answered: 'I am acquainted with Mrs. Ginn. Her son-in-law is employed at my place of business.' Davis also said there was nothing about the acquaintanceship or relationship with her son-in-law that would cause him to be prejudiced for or against the defendant in this case. Subsequently, appellant's counsel inquired of the panel as to whether 'any of you have had occasion to consult with him [prosecuting attorney], either in his capacity as prosecuting attorney or as a private attorney?' Mr. Davis answered, 'I have.' He was then asked if he had consulted the prosecuting attorney 'on a criminal charge' and he answered 'Yes.' When asked the kind of a criminal matter, he said on a 'bad check,' not a forged check. When asked if he had ever been 'a complaining witness in any criminal case in any state, in Missouri or any place,' he answered that he had on both robbery and checks. When asked whether that would 'tend to prejudice you against the defendant in this case' he answered, 'I can't say that it would.' See Johnson v. Missouri-Kansas-Texas R. Co., Mo.Sup., 374 S.W.2d 1, 2. Subsequently, counsel asked Davis if he had ever heard or read anything about this case and Mr. Davis indicated that he had, but that he had formed no opinion as to the guilt or innocence of this defendant at this particular time; and that he had not heard or read anything about the case that would preclude him, if chosen, 'from giving [defendant] a fair and impartial verdict in the case.' Defendant's counsel then challenged Davis for cause on the ground that he had 'been a complaining witness, * * * on a check and has been a witness in criminal cases, check cases'; and that counsel felt that under the circumstances and in view of Davis' statements he could not be a fair and impartial juror. The challenge for cause was overruled and the defendant used one of his peremptory challenges to remove Davis from the list.

There is no contention here of any intentional concealment or any failure on the part of Davis to make a full disclosure of the matters inquired about on voir dire examination. Here the sole question presented is whether the facts disclosed by Davis disqualified him as a matter of law from being a qualified juror.

There is no contention here that Davis was disqualified by either § 494.010, as amended Laws 1959, S.B. No. 246, or by § 494.190 RSMo 1959, V.A.M.S.; however, these sections are not all inclusive. Barb v. Farmers Ins. Exchange, Mo.Sup., 281 S.W.2d 297, 301[1-3]. It has been said that, 'there is no feature of a trial more important and more necessary to the pure and just administration of the law than that every litigant shall be accorded a fair trial before a jury of his countrymen, who enter upon the trial totally disinterested and wholly unprejudiced. * * * The question of the qualification of a juror is a question to be decided by the court, and not one to be decided by a juror himself. It is the prerogative and duty of the trial court to exercise a wise, judicial discretion in this regard, and the conclusion of the court should rest upon the facts stated by the juror with reference to his state of mind, and should not be allowed to depend upon the conclusions of the juror as to whether or not he could or would divest himself of a prejudice he admitted existed in his mind.' Theobald v. St. Louis Transit Co., 191 Mo. 395, 90 S.W. 354, 359; State v. White, 326 Mo. 1000, 34 S.W.2d 79, 81[2-4].

Defendant's challenge of venireman Davis for cause, on the grounds stated, was directed to the sound discretion of the trial court. In the determination of...