State v. Martin

• Decision Date: 30 June 1910
• Citation: 129 S.W. 881,229 Mo. 620
• Parties: THE STATE v. THOMAS L. MARTIN, Appellant
• Court: Missouri Supreme Court

129 S.W. 881

229 Mo. 620

THE STATE v. THOMAS L. MARTIN, Appellant

Supreme Court of Missouri, Second Division

June 30, 1910

Appeal from Jackson Criminal Court. -- Hon. E. E. Porterfield Judge.

Reversed and remanded.

Noyes & Heath for appellant.

(1) The court erred in sustaining the objection to the evidence of witness Webb, as to the receipt for $ 500. Strange v Crowley, 91 Mo. 287; Kleimann v. Giselmann, 114 Mo. 437. (2) The court erred in permitting the evidence of Langsdale, Reynold, Murphy and Lee, as to the defendant being arrested in Texas and as to other charges against him. R. S 1899, sec. 4680. (3) The court erred in permitting the State to cross-examine the defendant on matters not mentioned in direct examination. State v. Patterson, 88 Mo. 88; State v. Chamberlain, 89 Mo. 129; R. S. 1899, sec. 2637; State v. Fullerton, 90 Mo.App. 417; State v. Tract, 36 Mo.App. 29. (4) The court erred in permitting the State to introduce a certified copy of the deed. Pringey v. Guss, 16 Okla. 82; State v. Lentz, 184 Mo. 223; State v. Flanders, 118 Mo. 227; State v. Teasdale, 120 Mo.App. 692; Carr v. Carr, 36 Mo. 408. (5) The court erred in permitting the examination of the defendant on the change of venue and application for continuance. McDonald v. Cash, 45 Mo.App. 66; Wall v. State, 62 S.W. 1062.

Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.

(1) Defendant objected to the introduction of the two deeds of trust upon the property, because they were transactions after the fact. These deeds of trust were competent for the purpose of showing that defendant was claiming the property under the forged deed, and was exercising rights of ownership by executing mortgages upon the property. (2) Defendant inquired of witness W. S. Webb if he examined the receipt for five hundred dollars from Thomas L. Martin, and signed by Anton Mielkey, at a trial in Judge Seehorn's court, involving this same property described in the forged deed, and if the signature to the receipt was written by the same man as the signature on the check and note. The State objected to this evidence on the ground that it was a matter of impeachment, and no foundation was laid for the impeachment. As Mr. Mielkey had not been interrogated upon that question, this was a proper ruling. (3) The defendant excepted to the action of the State showing that it was impossible to subpoena Lotta Martin, the wife of the defendant, at the trial of this cause, to bring forth the purported forged deed that she obtained from the recorder's office. This was competent evidence. (4) The exception to the State proving that the appellant was extradited and brought from Texas to this State for trial, could not be considered, as the court, in instruction 5, instructed the jury that defendant's arrest in Texas raised no presumption as to his guilt, and the jury were instructed to disregard it in making up their verdict. (5) Objection is made that testimony was introduced that the officers of the court were unable to find Mrs. Martin, wife of appellant. It was obligatory upon the State to produce the deed. In case of loss or destruction of same the certified copy was admissible in evidence. It was so held in State v. Flanders, 118 Mo. 237. 2 Bishop's Crim. Proc. (3 Ed.), sec. 433. The witness in the recorder's office testified that a woman, who gave her name as Mrs. Martin, had taken the deed from the office. It was proper for the State to show the loss of the deed and thus make out a primafacie case of its loss before introducing certified copy. State v. Flanders, supra, 238; Foulkes v. Commonwealth, 2 Rob. (Va.) 836; Rex v. Haworth, 4 C. & P. 254; United States v. Britton, 2 Mason 464; Henderson v. State, 14 Tex. 503.

OPINION

FOX, J.

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, Missouri, with intent to defraud. He was convicted of said offense, his punishment being assessed at ten 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 Missouri, 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, re-conveyed 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 appears to have been said by either, respecting the contemplated transaction, 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 the 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 awhile 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...