State v. Kullman
| Decision Date | 12 February 1910 |
| Citation | 125 S.W. 449,225 Mo. 625 |
| Parties | THE STATE v. CHARLES F. KULLMAN, Appellant |
| Court | Missouri Supreme Court |
Appeal from Benton Circuit Court. -- Hon. C. A. Denton, Judge.
Affirmed.
W. S Jackson and T. C. Owen for appellant.
(1) The prosecution in this case was barred by sec. 2419, R. S. 1899. The information was not filed until over six years after the alleged commission of the offense. The State sought to evade the bar of the statute by pleading its suspension under the terms of sec. 2421, R. S. 1899. (2) The peremptory instructions offered by defendant at the close of the State's case should have been given. No evidence was offered to show that he had ever abandoned his residence in this state, nor was any offered to show that he had acquired one elsewhere. This statute is to be liberally construed in favor of defendant. Wharton, Cr. Pr. and Pl. sec. 316. How can it be said that the state, under such evidence, was entitled to go to the jury? If a defendant is seen by several persons in a foreign state and is not seen at home by one or two others, does that overcome the presumption that his home continues where it is once shown to be until the contrary is proven by evidence sufficient to overcome such presumption? State v. Snyder, 182 Mo. 517; State v Sanders, 106 Mo. 193. (3) There was no direct evidence offered by the state on the question of the residence and habitation of defendant in another State; it was all circumstantial, and this being so, the case, upon this issue stands upon the same ground as though this were the sole issue in the case, and the court committed error in not instructing the jury on the law concerning circumstantial evidence. State v. Woolard, 111 Mo. 248; State v. Daniel, 131 Mo. 380; State v. Moxley, 102 Mo. 374.
Elliott W. Major, Attorney-General, and Chas. G. Revelle, Assistant Attorney-General, for the State.
(1) The competency of this evidence is not open to doubt, the sole question being one of its weight, and that, under proper instructions, was one for the jury. Hall v. Schoenecke, 128 Mo. 661; Lankford v. Gebhart, 130 Mo. 621; Pope v. Fleuge, 140 Mo. 399; State v. Snyder, 182 Mo. 503. This testimony standing uncontradicted, and there being no facts or circumstances in evidence tending in any measure to affect or overcome the conclusion that it warrants, is amply sufficient to sustain the finding of the jury. State v. Snyder, 182 Mo. 517. The question of residence was one of fact, and having been submitted to the jury under appropriate instructions, and there being substantial evidence to support its findings, the verdict will not be disturbed on appeal. Lankfort v. Gebhart, 130 Mo. 638; State v. Miller, 182 Mo. 386; State v. Kosky, 191 Mo. 16; State v. Wigger, 196 Mo. 97. (2) Defendant complains that the court failed to instruct the jury on the law relating to circumstantial evidence, but reference to the record discloses that he wholly failed to request such an instruction, or to direct, in any manner, the attention of the court to this feature, and cannot, therefore, urge the objection in this court. State v. Espenschied, 212 Mo. 222; State v. Bond, 191 Mo. 555. Besides, the point is no more definite in the motion for a new trial, and is entirely too indefinite to be available in this court. Besides this, upon the evidence disclosed by this record, it was not error to refuse an instruction on circumstantial evidence.
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, Washington, 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, Oregon, 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, Revised Statutes 1899. This section suspends the Statute of Limitations in criminal cases for three reasons: (1) Where the party is a fugitive from justice; (2) for such period of time as the party is not an inhabitant of the State, and (3) for such period of time as the party is not usually resident within this State after the...
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