State v. Jones
| Decision Date | 27 November 1985 |
| Docket Number | No. 13941,13941 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. J.C. JONES, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
William L. Webster, Atty. Gen., Thomas Carter, II, Paul LaRose, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.
Blair Buckley, Jr., Public Defender, Caruthersville, for defendant-appellant.
Defendant was charged with forgery under § 570.090.1(1), RSMo 1978, for having endorsed a check, for $928.70 payable to Mary Wood, so that it purported to have been endorsed by Mary Wood. Following jury trial he was convicted and sentenced as a persistent offender to 10 years' imprisonment. On appeal he presents two points relied on.
His first point states:
The trial court erred in denying Defendant's Motion for Judgment of Acquittal and Defendant's Motion for New Trial, because the State had not proved all of the elements of the crime charged, in that no evidence was presented at trial that the Defendant had written the endorsement of Mary Wood's name on the check as charged in the information and as the jury was required to find by the verdict director.
There was evidence that the endorsement was forged and that defendant had possession of the check and cashed it. In State v. Gantt, 504 S.W.2d 295, 300 (Mo.App.1973), the court stated "that the possession of and an attempt to pass a forged instrument raises a presumption that the person in possession forged it". See also State v. Bailey, 659 S.W.2d 559, 562 (Mo.App.1983) (); State v. Sanford, 605 S.W.2d 219, 221 (Mo.App.1980) ().
Defendant acknowledges such decisions but states,
As authority for its statement quoted above, State v. Gantt cites State v. Pyscher, 179 Mo. 140, 77 S.W. 836, 841 (1903), and State v. Williams, 152 Mo. 115, 53 S.W. 424, 426 (1899). These cases support the statement in Gantt and must be followed here. Decisions of the Missouri Supreme Court are controlling in this court. Mo. Const. art. V, § 2; Estate of Seabaugh, 654 S.W.2d 948, 957 (Mo.App.1983). Based upon those decisions, the evidence was sufficient to support the conviction. Point one is denied.
Defendant's second point states:
The trial court erred in making a finding, over objection by the Defendant, after the jury retired to consider its verdict, that the Defendant was a persistent offender, because the finding prejudiced the Defendant in that it subjected him to increased punishment and in that it was made after the jury retired it was detrimental to the Defendant because the Defendant had not testified in order to prevent the jury's sentence, if the Defendant was found guilty, from being influenced by knowledge of the Defendant's prior convictions and had the Defendant known the jury would not be asked to set punishment he would have testified to have increased his chance for a not guilty verdict.
Defendant is correct that the determination of whether he was a persistent offender should have been made before the cause was submitted to the jury. "In a jury trial, the facts shall be pleaded, established and found prior to submission to the jury outside of their hearing". Section 558.021.2, RSMo Supp.1984.
A hearing on the persistent offender issue was held on the morning of trial before the jury was impaneled. The trial judge did not make a finding then, apparently because he was going to examine and take judicial notice of certain records of the court regarding prior...
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