State v. Kullman

• Decision Date: 12 February 1910
• Citation: 125 S.W. 449,225 Mo. 625
• Parties: STATE v. KULLMAN.
• Court: Missouri Supreme Court

125 S.W. 449

225 Mo. 625

STATE v. KULLMAN.

Supreme Court of Missouri, Division No. 2.

February 12, 1910.

1. CRIMINAL LAW (§ 152) — LIMITATION OF PROSECUTIONS — STATUTORY PROVISIONS.

Rev. St. 1899, § 2421 (Ann. St. 1906, p. 1473), relating to limitation of criminal actions, and providing that the time during which any defendant shall not have been an inhabitant of or usually resident within the state shall not constitute any part of the limitation prescribed in the preceding section, provides two separate and independent grounds for the suspension of the statute of limitations.

2. CRIMINAL LAW (§ 565) — LIMITATION OF PROSECUTION — ABSENCE OR NONRESIDENCE — SUFFICIENCY OF EVIDENCE.

Evidence held to authorize a finding that accused was not an inhabitant of or resident within the state for a sufficient length of time to take the case out of the statute of limitations.

3. CRIMINAL LAW (§ 1059) — APPEAL — OBJECTIONS BELOW.

Failure of the court to instruct on circumstantial evidence was not sufficiently raised on appeal where the only point in the record going to the question was that "defendant also excepted to the failure of the court to instruct the jury on all the law of the case," and the motion for new trial made the point no more definite.

4. CRIMINAL LAW (§ 730) — ARGUMENT OF COUNSEL — ERROR CURED.

In a criminal trial, where accused relied on the statute of limitations, claiming that he was within the state, the prosecuting attorney in his argument stated that if accused had been in the state he could easily have brought witnesses to prove it, whereupon accused's counsel objected, and the court promptly ordered the remark withdrawn and excluded from the jury. Held, that the error, if any, was cured.

Appeal from Circuit Court, Benton County; C. A. Denton, Judge.

Charles F. Kullman was convicted of forgery, and he appeals. Affirmed.

W. S. Jackson and T. C. Owen, for appellant. E. W. Major, Atty. Gen., and Chas. G. Revelle, Asst. Atty. Gen., for the State.

BURGESS, J.

By information, the prosecuting attorney of Benton county charged the defendant in the first count of said information with the crime of forgery, and in the second count with uttering the forged instrument; i. e., a note, upon which it is alleged that the name of one of the parties, Claus Bruns, had been forged. Both counts refer to the same instrument. The crime is charged as being committed in January, 1901, but no information was filed until 1907. The amended information, upon which conviction was had, was not filed until the year 1908. This information charges, in addition to the formal charges of the two respective crimes, "that from the 15th day of February, 1901, until the 6th day of November, 1907, the said Charles F. Kullman has at no time been an inhabitant of or usually resident within the state of Missouri." The defendant duly entered his plea of not guilty to said amended information, and upon trial before a jury was convicted of the crime of forgery as charged in the first count of the information, but was acquitted of the charge in the second count of said information. Punishment was fixed at three years in the penitentiary. Upon which verdict of the jury so fixing the punishment, sentence and judgment was duly entered. In due course, and in proper order, the cause reaches us upon the appeal of the defendant. In their brief, counsel for defendant urge but three things as grounds for reversal: (1) Failure of proof on the part of the state to show that the defendant had not been "an inhabitant of or usually resident within this state; (2) failure of the court to give an instruction on circumstantial evidence; and (3) improper remarks of the prosecuting attorney in the course of his argument. Of these questions in their order.

Upon the first insistence of counsel a review of the evidence is required. By Lon Kreisel, who lived in Benton county, it was shown that in the year 1901 he was in the state of Washington; that he arrived at Hoquiam, state of Washington, the latter part of March, 1901, and that whilst there he was intimately acquainted with the defendant, and saw him often, until the 9th day of July, 1901, when defendant disappeared; that he saw him no more until after he was arrested and brought back to Missouri, in November, 1907. By Charles Fitzinger, another witness who was at Hoquiam, Wash., in 1901, it was shown that he saw the defendant at that town for some time, the length of time not being stated, but evidently about the time mentioned by the preceding witness. This witness also testifies to defendant's disappearance in the state of Washington, and that it was thought he had been drowned. By the deputy sheriff, Mr. Hart, it was shown that after the defendant was brought back to Missouri he had a talk with him, and that defendant said he was in Oregon when apprehended; that defendant said he had been in Alaska about a year during the time he was absent from Missouri, and that he had also been in California, Washington, and Oregon, but no time was given as to the stay in the several states other than the territory of Alaska. From another witness, Claus Bruns, it was made to appear that he was raised in the same neighborhood with Kullman, in Benton county, and that his name to the note was a forgery. In fact, whilst the record does not clearly so speak, it is evident therefrom that the defendant was born and raised in Benton county and lived there up to the early part of February, 1901. Henry P. Lay, an attorney at law, testified that by reason of certain litigation he and his associates had made diligent search for defendant for about two years prior to his apprehension in November, 1907, and that it was through his efforts that the defendant was located and apprehended in the state of Oregon. By W. T. Meyers it was shown that defendant spoke to him of being at Portland, Or., for a time, but did not say how long. Such is the state's evidence upon the absence of the defendant from the state of Missouri.

Counsel for defendant urge that this is an insufficient showing under section 2421, Rev. St. 1899 (Ann. St. 1906, p. 1473). This section suspends the statute of limitations in criminal cases for three reasons: (1) Where the party is a fugitive from justice; (2) for...