State v. Martin

Decision Date30 June 1910
Citation129 S.W. 881,229 Mo. 620
PartiesSTATE v. MARTIN.
CourtMissouri Supreme Court

Rev. St. 1899, § 933 (Ann. St. 1906, p. 849), provides that, before a certified copy of an instrument conveying or affecting real estate can be read in evidence, it shall be shown to the court by the oath or affidavit of the party wishing to use the same or of any one knowing the facts that such instrument is lost, or not within the power of the party wishing to use the same. On a prosecution for forgery of a deed, there was evidence that defendant had stated after his arrest that he had the deed, and it was shown that a certain woman had taken the deed from the recorder's office, and it did not appear that she had ever been served with a subpœna duces tecum. It was shown that a warrant for her arrest had been issued and an attempt was made to arrest her about a year before the trial. There was no evidence that the deed was lost or destroyed or that defendant was notified to produce it. Held, that it was error to admit a certified copy of the deed.

3. WITNESSES (§ 271) — CROSS-EXAMINATIONS.

Laws 1905, p. 307 (Ann. St. 1906, § 4655a), provides that a party to a cause, against whom a witness has been called and given some evidence, shall be entitled to cross-examine said witness on the entire case. On a prosecution for forgery of a deed, defendant claimed that the grantor had given him a receipt for a payment made, and there was evidence to such effect, and a witness for the state testified that he had compared the signature on the receipt with the admitted signature of the grantor on checks. The receipt and checks were lost. Held, error not to permit him to be asked on cross-examination whether the signature on the receipt was written by the same man who wrote the checks; a contention that the question was matter of impeachment for which no foundation had been laid being of no merit, and the grantor not having been asked whether he gave such a receipt.

4. CRIMINAL LAW (§ 1169) — APPEAL — HARMLESS ERROR.

An instruction to disregard evidence improperly admitted in a criminal case will not cure the error of admitting it, if it was of a character prejudicial to the defendant.

5. CRIMINAL LAW (§ 351) — EVIDENCE — ADMISSIBILITY.

In a criminal case it appeared that defendant was released on bail, and that after the case was continued on his motion his bondsmen discovered that he was in another state, and one of them made a criminal charge against him and caused his extradition, but that such charge was never prosecuted. Held, error to admit evidence of the arrest and extradition.

6. CRIMINAL LAW (§ 1169) — APPEAL — HARMLESS ERROR.

The error was not cured by an instruction that the jury should disregard the evidence.

7. CRIMINAL LAW (§ 351) — EVIDENCE — ADMISSIBILITY.

It was error to permit accused to be asked if he had not taken a change of venue.

Appeal from Criminal Court, Jackson County; E. E. Porterfield, Judge.

Thomas L. Martin was convicted of forgery, and he appeals. Reversed.

By information filed by the prosecuting attorney of Jackson county in the criminal court thereof, the defendant was charged with having, on the 4th day of April, 1907, forged a certain deed, purporting to be the act of one Anton Mielkey, conveying to himself (defendant) said Mielkey's interest in certain real property in Kansas City, Jackson county, Mo., with intent to defraud. He was convicted of said offense; his punishment being assessed at 10 years in the penitentiary. From the judgment of conviction defendant appealed to this court.

The evidence on behalf of the state tended to prove that Anton Mielkey lived at 807 Linwood Boulevard, Kansas City, Mo., and was since 1882 owner of the real estate in said city the deed to which defendant is charged with having forged. Defendant and his wife Lotta Martin, lived at 3215 Smart avenue, in Kansas City. Mielkey became acquainted with the defendant through the latter's wife, who had been dressmaker for Mielkey's wife, and who often visited at his house. It appears that on August 1, 1906, Mielkey conveyed this property by warranty deed to Mrs. Martin, and that several days thereafter Mrs. Martin and her husband, the defendant, reconveyed the same to Mielkey. As to this transaction Mielkey testified that Mrs. Martin was to hold the property for the Bank of Commerce, and that he had no trouble in getting it back. On Christmas Day, 1906, defendant went to Mielkey's home and presented him with a box of cigars and a scarf; the latter being a present from defendant's mother-in-law. Thereafter, about the latter part of January, 1907, Mielkey was at Martin's home, and while there he made it known that he wished to sell his Linwood Boulevard home, having need of money. Mrs. Martin said that she knew Mr. Winants, of the Bank of Commerce, very well; that the Bank of Commerce "had now a building and loan company in connection with its banking business"; and that, if Mielkey would allow her to take his abstract over to the bank, she would ask Mr. Winants to buy his property before buying any other real estate. To this Mr. Mielkey replied: "I will allow you to take the abstract over, but I will not give a deed until I get my money." This conversation was carried on in the presence of the defendant.

The abstract in question was afterwards placed in the Bank of Commerce, and in the latter part of March, 1907, Mielkey delivered the abstract to defendant to have the same examined by a man named Brown, who was in some way to procure money for Martin to enable him to purchase the property; the price to be five thousand dollars. On March 21, 1907, Mielkey received from Martin a short letter, reading as follows: "Come over your earliest convenience, Saturday or Sunday, for supper. Want to see you on important business." A few days later Mielkey received another letter from Martin, which letter became lost; but the contents of which, as Mielkey remembered same, were as follows: "Your property is sold for cash, on your approval. Meet me to-morrow at eleven o'clock at Brown's office." Instead of going to Brown's office, Mielkey went next day to Martin's house, and played cards with Martin till about 9 o'clock that evening, when he departed for home. Defendant accompanied him to the car line. On the way defendant told Mielkey that he had made arrangements with Brown, who represented an eastern insurance company, whereby he (Martin) could get money to purchase Mielkey's property; also, that he had received a letter from a friend in the east who had money, and who asked him to look up some good investment. Martin then informed him that he was going to buy this property and build a flat thereon, and then sell the same to his eastern friend, and make some money by the transaction. He did not give the name of his friend, but stated that he had known him for years and was raised with him. Some days later Mielkey received from Martin the following undated letter: "Bring the deed when you bring the abstract. Mr. Brown suggests that if you had the deed in the abstract it would do away with a lot of red tape; could get the money right away. This is merely a suggestion. He and I went out and looked over the property this morning." After receiving said letter Mielkey called at defendant's home, and again engaged in a game of cards with defendant. Nothing occurred during the progress of the card game. As Mielkey was about to leave Martin's house, Martin volunteered to go with him to the car line. While on the way to the car line, Mielkey told defendant that the abstract was at the Bank of Commerce, and that he (defendant) would have to get it. Next morning defendant brought the abstract to Mielkey, who delivered it to Dean S. Kelly Abstract Company in order that the abstract might show all transfers of the property down to date. He received the abstract from said company about the 4th or 5th of April, 1907, and took the same, together with the deed which Mielkey had received from Charles E. Welke, from whom he had purchased the property, to Martin's house. Martin met him at the door and took him into the house the back way. After remaining a-while in the house, defendant took Mielkey down in the basement, where defendant asked him for and received the abstract. On the way to the car line, defendant said he would have the money in a few days; Mielkey replying: "All right; then we will have it all straightened up." Mielkey explained that the reason defendant took him down in the basement was that the house was being painted, as also the porch, and to avoid the paint they went down in the basement and out through a side door. Next day Martin came to Mielkey's house and informed him that Brown said that, if he (Mielkey) would deed the property to him (Martin), it would do away with a great deal of red tape, and the money would be forthcoming promptly. Mielkey replied that he would not give the deed until the money was ready to be given him, and told Martin to see Brown about it again. On April 8 or 9, 1907, Mielkey received an undated letter from Martin, the envelope containing which being postmarked, "Kansas City, Mo., Apr. 8-8:30 P. M. `07." Said letter contained the following: "Mr. Brown says that he can't handle the proposition in any other way. He says that he could not get the money without sending to the home office. He says it is simply a matter of your trusting the property in my name for a few days. He says he can't understand why you would trust a transfer only a few months ago, and to the...

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