State v. Miller

• Decision Date: 14 March 1927
• Docket Number: No. 27522.,27522.
• Citation: 292 S.W. 440
• Parties: STATE v. MILLER.
• Court: Missouri Supreme Court

292 S.W. 440

STATE v. MILLER.

No. 27522.

Supreme Court of Missouri, Division No. 2.

March 14, 1927.

Appeal from Circuit Court, Cape Girardeau County ; Frank Kelly, Judge.

Wash Miller was convicted of third degree forgery, and he appeals. Affirmed.

E. L. McClintock, of Cape Girardeau, for appellant.

North T. Gentry, Atty. Gen., and James A. Potter, Asst. Atty. Gen., for the State.

WHITE, J.

The defendant appealed from the judgment of the circuit court of Cape Girardeau county, rendered upon conviction of forgery in the third degree.

The evidence showed that the Bank of Oak Ridge, at Oak Ridge, Cape Girardeau county, was closed by the state bank examiner June 17, 1925. Among the assets of the bank was a note for $2,000 purporting to be signed by E. J. White. One E. P. Kiesler was appointed special examiner to liquidate the assets of the bank. In conversation with the defendant the latter admitted that he signed White's name to that note.

E. J. White testified that he did not sign the note ; that he never authorized the defendant to sign his name to it ; that he received no consideration for it, and had no knowledge of its existence until he received notice from the liquidating officer. He testified further that he was in the real estate business in Memphis, and had some business dealings with defendant, and learned that defendant owed the Bank of Oak Ridge $4,-500. Defendant solicited White to assist him in securing or paying the indebtedness, and some negotiations were had between them, but nothing was done in that respect.

The defendant testified in his own behalf that he owed $4,500 to the Oak Ridge Bank, and that he had some conversations with Mr. Ford, the president of the bank, in which Ford undertook to assist him in an enterprise whereby he could make money to pay back his old indebtedness to the bank, and referred him to Mr. Ray Duncan, the cashier. Later, for the purpose of securing a part of his old indebtednes, he signed the name of E. J. White to the $2,000 note in question. He claimed that he had a letter from White, authorizing him to sign the latter's name to the note; that he showed Duncan the letter, and signed White's name to the note in Duncan's presence; and that he had no intention to defraud the bank. In rebuttal the state offered Mr. Ford, who denied all the statements of the defendant so far as they related to any conversations with him.

The defendant acted as his own attorney. The jury found him guilty, and assessed his punishment at seven years in the penitentiary, and the court reduced the term to 4 years and 10 months.

I. Two reasons are advanced by defendant to sustain his position that a case was riot made out: First, because he had authority from White to sign his name to the note; and, second, because Duncan, cashier of the bank, knew he signed White's name to the note, aid there was no intention to deceive as to the fact that he had signed that name.

Duncan was not produced as a witness. He was subpoenaed on behalf of the defendant, but the, defendant admitted on crossexamination that he excused him because Duncan did not want to testify. If the defendant, without attempting to deceive, signed the name of White to the note in the presence of the cashier, the offense was not forgery, but false pretense in misrepresentation of his authority. The jury, however, was not obliged to believe that statement. of defendant, and evidently disbelieved it. The instruction required a finding that the defendant falsely forged the note, and told the jury that, if the defendant's statement in explanation of the reason for signing it was true, they should find the defendant not guilty. The verdict was supported by sufficient evidence.

II. The verdict was rendered and the motion for new trial filed after the act of 1925 (Laws 1925, p. 194), relating to motions for new trial, went into effect. Therefore many errors assigned in the motion are too general to require consideration.

In the motion error is assigned properly to the failure to instruct the jury on the credibility of witnesses. Such an instruction is always within the discretion of the trial court. It has been many times so decided. State v. Hayes (Mo. Sup.) 262 S. W. loc. cit. 1037. The defendant asked no instruction upon that point.

III. It is further complained that the court erred in failing to instruct the jury that the fact of defendant's previous conviction and sentence to the penitentiary should be considered by the jury only as affecting the credibility of the witness, and should not be considered in determining whether he was guilty of the offense charged. The defendant likewise asked no instruction upon that proposition. It is purely a collateral matter. The court, whether requested or not, is required to instruct on all the law of the case, which is defined to mean all the essential elements of the offense embraced within the charge. State v. Lackey, 230 Mo. 720, 132 S. W. 602. This relates to the purpose of certain evidence. We have held that a rule of evidence is a matter collateral, and not an essential element of the offense. State v. Murray (No. 27357) 292 S. W. 434, not yet [officially] reported ; State v. Davis (Mo. Sup.) 267 S. W. 838, loc. cit. 841.

IV. It is claimed also that the court erred in failing to advise defendant, who was not represented by counsel, regarding his right to ask instructions. That...