State v. Mace

• Decision Date: 12 November 1956
• Docket Number: No. 45525,No. 1,45525,1
• Citation: 295 S.W.2d 99
• Parties: STATE of Missouri, Respondent, v. William D. MACE, Appellant
• Court: Missouri Supreme Court

Page 99

295 S.W.2d 99

STATE of Missouri, Respondent, v. William D. MACE, Appellant.

No. 45525.

Supreme Court of Missouri, Division No. 1.

Nov. 12, 1956.

No attorney for appellant.

John M. Dalton, Atty. Gen., Grover C. Huston, Asst. Atty. Gen., for respondent.

DALTON, Judge.

Defendant was convicted of forgery in the second degree and sentenced to eight years in the state penitentiary. The charge was drawn and the cause submitted under Sec. 561.250 RSMo 1949, V.A.M.S. (uttering false check) and the penalty assessed was within the limits fixed by Sec. 561.330(2) RSMo 1949, V.A.M.S. And see Sec. 561.080 RSMo 1949, Sections 561.250, 561.080 and 561.330 have since been repealed and a new section enacted. See Laws of Missouri 1955, p. 505; Sec. 561.011 RSMo, V.A.M.S. Such repeal, however, is immaterial to any of the issues here. Section 1.160 RSMo 1949, V.A.M.S. Defendant was allowed to appeal as a poor person and he has filed in this court what purports to be a brief, but, as we shall, see, it is not directed to any of the issues presented to and ruled upon by the trial court.

In his brief the defendant contends that a certain check found under the front seat of his automobile at the time of his arrest and a check taken out of his sock at police headquarters after his arrest were erroneously admitted in evidence because his arrest was unlawful in that the arresting officer had no warrant for such arrest and no reasonable cause to believe that a felony had been committed or that the defendant was the guilty party. Defendant says 'the records of the Independence Police Station read that defendant was booked for 'Drunken Driving' which shows that at the time of arrest there was no suspicion of a crime having been committed by defendant.' (The offense referred to is a felony. See Sections 564.440 and 564.460 RSMo 1949, V.A.M.S.) No motion to suppress the checks (as evidence against defendant) was filed or fuled and the only objection interposed to the admission of the checks in evidence at the trial was that 'they neither tend to prove or disprove this crime * * * they are not endorsed by defendant.' Defendant further contends that a written statement or confession given to the police after his arrest was improperly received in evidence as there was evidence from which an inference could be drawn that it was not 'a free and voluntary statement.' The record contains substantial testimony to support a finding that the written statement in question was voluntarily given by defendant without threats or promises and after defendant had been fully advised of his constitutional rights in the matter. The sole objection made to the introduction of this statement in evidence was on the ground that 'it refers to other checks than the ones in evidence, State's Exhibit 1, which the defendant is being charged with.' Neither the statement nor the checks were specifically mentioned or referred to in defendant's motion for a new trial. Supreme Court Rule 27.20, 42 V.A.M.S. Since it appears that appellant's pro se brief is not directed to any issues specifically presented to and ruled upon by the trial court or to any matter preserved for review on appeal and since the brief is foreign to the issues presented and decided, we shall disregard it and, in accordance with Rule 28.02, 42 V.A.M.S., we shall examine the entire record presented for review and the assignments of error stated in the motion for a new trial which are sufficiently specific to comply with Supreme Court Rule 27.20, 42 V.A.M.S. One of the assignments in the motion for a new trial is that the court erred in refusing to instruct the jury, at the close of the state's evidence, to return a verdict of not guilty. Defendant neither testified in his own behalf nor offered any evidence and the cause was submitted solely on the state's evidence, which we shall briefly review in order to determine the sufficiency of the evidence to support the judgment.

On February 18, 1955, Jess L. Brents was operating a service station in Independence, Jackson County, Missouri, selling Standard Oil Company products. On that date defendant presented a check for $52.71 in payment of a $10 account and received the difference in cash. The check purported to be a payroll check, dated February 18, 1955, drawn on the City National Bank & Trust Company of Kansas City, Missouri, for the amount mentioned, payable to Allen Hutchinson and purporting to have been executed by F. W. Berger, F. & W. Construction Company, and endorsed by the payee. Defendant said the check was the payroll check of his brother-in-law, whom he said was the man accompanying him in his automobile. Defendant endorsed the check in Brents' presence, signing the name William D. Mace. When defendant left the station, Brents stepped out of the station and rechecked the automobile, seeing what appeared to be the same automobile, the same license number and the same Allen Hutchinson that had been in Brents' station on a previous occasion. The check was 'sent in through' the Raytown Bank, but it was dishonored by the drawee bank and returned to Brents. There was further evidence that there was no such account and had been no such account as F. W. Berger or F. & W. Construction Company in City National Bank & Trust Company of Kansas City, Missouri; and that the check had been returned to Brents on his endorsement, when the maker's account could not be located. During the period, February 18 to March 1, 1955, five such checks, purporting to be drawn on such an account in said bank, had been presented to the bank for payment and payment had been refused as no such account could be located.

Within a week or two prior to February 18, 1955, defendant had first appeared at Brents' service station in a Pontiac automobile with some other persons including Hutchinson and had obtained some gasoline on credit. Defendant gave his name and also an address and Brents took defendant's automobile license number. When Brents checked the address he found it was not correct, as there was no house at the address given. In the meantime defendant had made other purchases and the amount due was $10, when the check in question was presented. After defendant's arrest Brents identified him at the police station as the person who had presented and cashed the check and Brents was present when defendant's statement was taken and signed.

In the written statement defendant said he had not participated in writing any bogus check in the Kansas City area, but that he was involved only in cashing such checks; that he had received four checks, such as the one in question, from one Elmer Lenz, who was suppolsed to get $100 from the proceeds of the checks; that the checks had been prepared for cashing; that they were drawn on the City National Bank & Trust Company of Kansas City, Missouri, and signed Brown Construction Company or F. &...