State v. Pace

• Decision Date: 02 February 1917
• Docket Number: No. 19724.,19724.
• Citation: 269 Mo. 681,192 S.W. 428
• Parties: STATE v. PACE.
• Court: Missouri Supreme Court

192 S.W. 428

269 Mo. 681

STATE v. PACE.

No. 19724.

Supreme Court of Missouri, Division No. 2.

February 2, 1917.

Appeal from Circuit Court, Dent County; L. B. Woodside, Judge.

G. E. Pace was convicted of forgery, and he appeals. Judgment reversed, and cause remanded.

The appellant was convicted of forgery at the April term, 1916, of the circuit court of Dent county. The information upon which he was tried is in two counts, the first charges him, under section 4651, R. S. 1909, with the forgery of a certain promissory note purporting to be made by G. E. Pace, J. A. Pace, and Willis Pace, which note was payable to the Holland Piano Manufacturing Company. The second count charges the appellant, under section 4654, with having the same forged instrument in his custody and possession with intent to utter it.

The defendant, while engaged in the piano business at Salem, Mo., in December, 1913, ordered four pianos from the Holland Piano Manufacturing Company, of Minneapolis, Minn., and gave in payment for them two notes, signed by himself as principal, and by his father, Willis Pace, and his brother, J. A. Pace, as sureties, each note being for the sum of $230. One of these notes was paid at maturity and the other was renewed. The renewal note is the one to which it is claimed the defendant forged the names of his father and brother. It appears that the father and brother had signed the original notes, and in fact had been accustomed to sign notes for the defendant at various times while he had been in business. Each of them states in his testimony that he had never refused to sign a note for the defendant when requested.

The father, Willis Pace, testified that he had no recollection of signing the note in question, and thinks that he did not. He admitted on cross-examination, however, that he might have signed it. He admitted saying to an attorney, who brought the note to him for collection, that he might have signed it. It is conceded that the brother of the defendant, J. A. Pace, did not sign the note; but the defendant claimed that J. A. Pace gave him authority to sign the latter's name to the note, he being too busy at the time to come to the defendant's place of business for the purpose. J. A. Pace denied giving any such authority. The defendant asserts very stoutly in his testimony that his father did sign the note. Testimony was offered by the state to show that the signature attached to the note, purporting to be that of Willis Pace, was not in fact his signature. The evidence further shows, in support of the second count of the information, that the note alleged to be forged was by the defendant taken for the purpose of delivery to the Holland Piano Manufacturing Company in renewal of the former unpaid note, and was so delivered.

In the progress of the trial a witness, W. W. Young, a bank cashier, was shown a note marked Exhibit C, purporting to be signed by Willis Pace, and stated that the signature attached to the note was the signature of Willis Pace. He was then shown the note, Exhibit A, the note alleged to be forged in this case, and stated that the signature attached to it was not the signature of Willis Pace. The witness was not qualified in any manner as to his knowledge of the signature of the handwriting of Willis Pace. Both notes were then offered in evidence and exhibited to the jury over the objection of the defendant, who duly excepted. The witness was later recalled, and was asked by one of the jury whether he saw Willis Pace sign the note marked Exhibit C. He answered that he did not, but was familiar with his signature, and had seen it a great many times. No other question was asked of him for the purpose of qualifying him as to his knowledge of such signature. No other evidence was offered as to the genuineness of the signature to Exhibit C. The two notes were thereafter exhibited to other experts for the purpose of comparison. The admission of Exhibit C in evidence under the circumstances is assigned as error.

Upon the issues thus presented the jury returned the following verdict:

"We, the jury, find the defendant guilty of forgery in the third degree, as charged in the information, and we assess his punishment at imprisonment in the state penitentiary for a term of two (2) years."

J. J. Cope, Clyde C. Cope, and G. C. Dalton, all of Salem, for appellant. John T. Barker, Atty. Gen. (Lewis H. Cook, Asst. Atty. Gen., of counsel), for the State.

WHITE, C. (after stating the facts as above).

I. It is claimed by the defendant that the general verdict, because it did not designate on which count the defendant was found guilty, was a reversible error. The general rule is, where an indictment is in two or more counts, each of which charges the same offense in a different form, or where the several counts relate to the same transaction and are framed on different sections of the statute, to meet the exigencies occurring at the trial, or where the several counts state different degrees of the same offense, a general verdict of guilty will be sustained. Such is the ruling in cases cited by the respondent, where a defendant is charged with murder in the first and second degrees and manslaughter in different counts, as in the case of State v. Core, 70 Mo. 491, and the case of State v. Blan, 69 Mo. 317, and where robbery is charged in different forms in several counts, as in the case of State v. McDonald, 85 Mo. 539; also in the case of State v. Sattley, 131 Mo. 464, 33 S. W. 41, cited by respondent, where the defendant was charged in one count with feloniously receiving deposits as cashier of a bank, while knowing the bank was in a failing condition, and in another count with having assented to the creation of an indebtedness of the said bank, while knowing it was in a failing condition, a general verdict was sustained.

On the other hand, the rule is well established that a general verdict where the several counts of the indictment charge several distinct crimes will not be upheld. Such is the case where several different larcenies were charged in the different counts of the indictment. State v. Harmon, 106 Mo. 635, 18 S. W. 128. Another class of cases cited by respondent are those where the different counts of the indictment did not charge in different forms the same offense, nor yet charge offenses arising out of entirely different transactions, but where the several acts grew out of the same transaction, and that charged in one count was in the nature of a corollary to the original offense charged in another count. In such cases the question as to whether distinct offenses were charged in the several counts usually arose on a motion to compel the state to elect on which count it would proceed to trial; this on the theory that a defendant could not be tried at the same time and in the same trial for two different and distinct crimes. State v. Testerman, 68 Mo. 408; State v. Daubert, 42 Mo. 242. The last is a leading case, and often cited in later decisions. It was held in that case, where the indictment contained two counts, one for forgery and the other for uttering the forged instrument, that it was...