State v. Page

• Decision Date: 04 February 1933
• Docket Number: 31817
• Citation: 58 S.W.2d 293,332 Mo. 89
• Parties: State v. Ignatius Page, Appellant
• Court: Missouri Supreme Court

58 S.W.2d 293

332 Mo. 89

State v. Ignatius Page, Appellant

No. 31817

Supreme Court of Missouri

February 4, 1933

Appeal from Circuit Court of City of St. Louis; Hon. Wilson A Taylor, Judge.

Reversed and remanded.

Freeman L. Martin for appellant.

(1) The court erred in overruling appellant's plea of former acquittal filed before the commencing of the trial in the instant case and also re-filed during the progress of this case. For the convenience of the court we set out the said two indictments, to-wit: Appellant was indicted by the jury and charged with forgery in the first degree under indictment No. 278, which alleges that the defendant on the 28th day of March, 1929, in the city of St. Louis, Missouri, " But the rule is well settled that the State cannot split up a single crime and prosecute it in parts, and that a prosecution for any part of a single crime bars any further prosecution based upon the whole or another part of the same crime. 16 C. J. sec. 448; 8 R. C. L. sec. 130, p. 145, cited approvingly in State v. Toombs, 34 S.W.2d 64; State v. Colgate, 31 Kan. 511; Lorton v State, 7 Mo. 55; State v. Morphin, 37 Mo. 373; State v. Gustin, 152 Mo. 108. In State v. Huffman, 136 Mo. 58, 62, this court quoted approvingly from State v. Smith, 43 Vt. 324, as follows: "When one offense is a necessary element in, and constitutes an essential part of another offense, and both are in fact but one transaction, a conviction or an acquittal of one is a bar to a prosecution for the other." In 8 R. C. L. sec. 128, p. 129, it is said that: ". . . if there was one act, one intent and one volition no subsequent charge can be based thereon. . . ."

Stratton Shartel, Attorney-General, and Ray Weightman, Assistant Attorney-General, for respondent; Lieutellus Cunningham of counsel.

(1) The indictment is based on Section 4180, R. S. 1929, and follows the language of the statute. It has been stated that, "In all prosecutions for forgery, it is indispensably necessary that the indictment allege an intent to defraud, and this whether or not the statute of prosecution prescribes such requisite." Sherwood's Criminal Law, p. 342; 1 Wharton's Criminal Law (9 Ed.) sec. 742. Where the intent to defraud is a part of the crime as set out in the statute, it is necessary that the indictment charge the intent to defraud and that such issue be submitted to the jury. State v. Tobie, 141 Mo. 547; State v. Gullette, 121 Mo. 447; State v. Warren, 109 Mo. 430; State v. Cordray, 200 Mo. 29. It should be kept in mind that the statute we have under consideration does not require that the false certificate of acknowledgment be made by the notary public, with the intent to defraud. The making of the false certificate constitutes the crime, and where such is intentionally done it embraces the criminal intent necessary to constitute the crime. When the statute makes a certain act a crime and sets out the elements constituting the offense, an indictment charging the commission of the act in the language of the statute or in words of equivalent meaning is sufficient. State v. Harmon, 278 S.W. 733; Ex parte Karnstrom, 249 S.W. 595, 297 Mo. 384; State v. Fenley, 309 Mo. 520; State v. Bockstruck, 136 Mo. 351; State v. Ferris, 16 S.W.2d 96; State v. Tombs, 25 S.W.2d 101, 324 Mo. 819. (2) In order for the former prosecution to constitute former jeopardy and an acquittal there to be a bar to prosecution under a different indictment, it must appear that all the elements of the second charge were involved in the first, and were directly and expressly adjudicated. The plea will not avail unless it be apparent that the defendant was previously tried for identically the same offense as the one for which he is placed on trial. The fact that the same evidence may be introduced and the offenses may arise out of the same transactions, will not constitute them the same offense. State v. Moore, 33 S.W.2d 905; State v. Andrews, 27 Mo. 267; State ex rel. v. James, 82 Mo. 509; State v. Williams, 152 Mo. 115; State v. Williams, 263 S.W. 195; State v. Hess, 240 Mo. 147; State v. Bobbitt, 228 Mo. 252.

Cooley, C. Westhues and Fitzsimmons, CC., concur.

OPINION

COOLEY

Defendant was convicted in the Circuit Court of the City of St. Louis of forgery in the second degree as defined by Section 4180, Revised Statutes 1929. After an unavailing motion for a new trial he was duly sentenced to five years' imprisonment in the penitentiary, the punishment assessed by the jury, and has appealed.

The indictment was based upon the first subdivision of said Section 4180 making it a crime for any person authorized to take the proof or acknowledgment of any conveyance of real estate, or of any instrument which, by law, may be recorded to "wilfully certify that any such conveyance or instrument was acknowledged by any party thereto, when, in truth, no such acknowledgment was made." The indictment charged:

"That Ignatius Page on the 28th day of March, One Thousand Nine Hundred and Twenty-nine at the City of St. Louis aforesaid being then and there a notary public within and for said City of St. Louis, and as such authorized to take the acknowledgment of conveyances of real estate situate in said City of St. Louis, and which conveyances, by law, might then and there be recorded in the record of deed in the Recorder's Office in said City of St. Louis, a certain conveyance of real estate, to-wit: a deed purporting to be executed, signed, sealed and delivered by JESSIE MOODY, curatrix of CLYDIE MAE MOODY CUNNINGHAM and LUCIUS CUNNINGHAM, her husband, then and there being, whereby the said JESSIE MOODY, curatrix of CLYDIE MAE MOODY CUNNINGHAM and LUCIUS CUNNINGHAM, her husband, in consideration of the sum of seventeen hundred dollars ($ 1,700.00) to them paid by Douglas G. Lewis of the City of St. Louis and State of Missouri, sold, assigned and conveyed unto the said DOUGLAS G. LEWIS, and to his heirs and assigns forever, the following real estate, situate in said City of St. Louis, Missouri, described as follows, to-wit: (here follows description of real estate) he, the said IGNATIUS PAGE, as such Notary Public, unlawfully, wilfully, falsely, corruptly and feloniously did certify was by the said JESSIE MOODY, curatrix of CLYDIE MAE MOODY CUNNINGHAM and LUCIUS CUNNINGHAM, parties thereto, acknowledged before him on the 28th day of March, 1929, and that she, the said JESSIE MOODY, curatrix of CLYDIE MAE MOODY CUNNINGHAM, acknowledged that she, JESSIE MOODY and he, LUCIUS CUNNINGHAM executed the same as their free act and deed, when in truth no such acknowledgment of said conveyance was then or at any other time ever made by the said JESSIE MOODY before the said IGNATIUS PAGE, nor was any acknowledgment whatever of said conveyance ever made by the said JESSIE MOODY; Against the peace and dignity of the State."

The above indictment was numbered 279 in the circuit court. By another indictment numbered 278, returned at the same time, defendant was charged with forgery in the first degree, under Section 4175, Revised Statutes 1929, for having, as it was alleged, forged the deed referred to in indictment No. 279 by wilfully and feloniously forging and counterfeiting and causing and procuring to be forged and counterfeited the mark and name of Jessie Moody and the name of Lucius Cunningham thereto, with intent to injure and defraud. Before the trial of the instant case defendant had been tried and acquitted under indictment No. 278. By a written plea in bar filed before the trial and also by evidence offered at the trial of the instant case he interposed the acquittal under the first indictment as a bar to his further prosecution under the second, which plea the court overruled.

In their brief here counsel for the State thus succinctly set out the facts which the State's evidence tended to show:

"The evidence is voluminous, uncertain and conflicting, much of it incompetent but admitted without objection: That for the State tends to prove that Jessie Moody was curatrix of Clydie Mae Moody, her step-daughter, who received about $ 1,500 insurance upon the death of her father. The money was invested upon order of the Probate Court in real estate located at 4323 Cottage Avenue, St. Louis, Missouri. The ward married and sought to sell the property and employed the defendant, who handled the business for her and her husband. After unsuccessful efforts to sell the property during which $ 250 was turned over to the ward and spent by her, it was returned to the proposed purchaser, but by whom it is not clear. Further efforts were made and the deed in controversy appeared. Jessie Moody, the curatrix, denied signing the deed. Joseph McLemore was her attorney and represented her in matters concerning the estate. He testified that he knew nothing about the property being sold until a representative of the Southern Surety Company came to his office to discuss it and Mrs. Moody got in touch with him about the property being sold. Suit was brought and judgment recovered on the defendant's bond as notary public. [Note: This fact was shown only by oral testimony which however, went in without objection. It did not show the specific grounds on which the judgment was obtained.] Jessie Moody testified in substance that she had nothing to do with the defendant about selling the property or making the deed, and did not appear before him and put her mark on the deed conveying the property to Douglas G. Lewis, and Clydie Mae Cunningham testified in substance that Douglas Lewis brought the defendant to her about selling the property and that he said that Jessie Moody was supposed to sign for the property; that Jessie Moody never signed the deed; that she got $ 250 and spent the money; that Jessie Moody met with them in Probate...