State v. Patton
| Decision Date | 01 February 1941 |
| Docket Number | 37347 |
| Citation | 147 S.W.2d 467,347 Mo. 303 |
| Parties | The State v. Alma Patton, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Clair Circuit Court; Hon. C. A. Calvird Judge.
Affirmed.
Frank S. Sea, Don W. Owensby, Lee Crook and Charles Farrar for appellant.
The evidence showed that defendant's acts were committed in the presence of, and under the direction of her husband there was no evidence to rebut the presumption of coercion the court should have given defendants first instruction offered at the close of the State's evidence and directed an acquittal. State v. Miller, 162 Mo. 253. The evidence as a whole showed that defendant was a married woman and that the offense charged was committed in the presence of, and under the direction of her husband. There was no evidence to rebut the presumption of coercion. The court should have given defendants second instruction requested at the close of all the evidence, and directed an acquittal. State v. Miller, 162 Mo. 253. The law presumes that if a wife commits an offense in the presence of her husband, or at his request and under his direction, that it is the result of his constraint or coercion and unless rebutted excuses her. State v. MaFoo, 110 Mo. 7; State v. Miller, 162 Mo. 253; 12 Cyc. p. 161. There was no evidence offered in the case to authorize the giving of Instruction 5 asked by the State and it was error to give it. Said Instruction 5 does not declare the law in that it takes away from the defendant the presumption of coercion. State v. Pushon, 124 Mo. 448; State v. Miller, 162 Mo. 253.
Roy McKittrick, Attorney General, and Lawrence L. Bradley, Assistant Attorney General, for respondent.
(1) The information in this case is in proper form and is sufficient. State v. Stegner, 276 Mo. 427, 207 S.W. 826; State v. Wasington, 259 Mo. 335, 168 S.W. 695. (2) The verdict of the jury is in proper form and is responsive to the information. In re Bowman, 7 Mo.App. 568; State v. Batey, 62 S.W.2d 450; Hall v. Commonwealth, 143 S.W.2d 495. (3) Appellant waived her right to review the ruling of the court on the demurrer offered at the close of the State's evidence. State v. Lebo, 339 Mo. 960, 98 S.W.2d 695. (4) The evidence is sufficient to support the verdict. State v. Halbrook, 311 Mo. 664, 279 S.W. 395; 4 A. L. R. 269, 274; State v. Miller, 162 Mo. 253, 62 S.W. 692; 71 A. L. R. 1118. (5) Assignments 3 and 4 of the motion for new trial cannot be reviewed because not supported by the record. State v. Moulder, 57 S.W.2d 1064; State v. Williams, 335 Mo. 234, 71 S.W.2d 732. (6) The court did not err in giving Instruction 5. State v. Murray, 316 Mo. 31, 292 S.W. 434; State v. MaFoo, 110 Mo. 7, 19 S.W. 222.
Westhues, C. Cooley and Bohling, CC., concur.
Appellant, Alma Patton, was convicted of forging a check and sentenced to two years' imprisonment in the penitentiary, from which sentence she appealed. The information was filed in the Circuit Court of Polk County. On application of the defendant the venue was changed to St Clair County where the cause was tried. The check in question read as follows:
J. L. Kaudle was a farmer in Polk County, owning three farms and some live stock. He disappeared on or about July 25, 1938, and was not seen or heard of from that date to the time of the trial. Appellant and her husband, Clay Patton, lived on one of Kaudle's farms and Kaudle stayed with them. Arthur Tidwell held a note, signed by Kaudle, on which a balance of $ 200 was due, the note being secured by a chattel mortgage on two mares and a team of mules. On September 3, 1938, Tidwell received a letter and the check here in question. The envelope in which the check and letter were mailed was postmarked Denver, Colorado. The letter contained instructions to Tidwell to take the notes held by Tidwell to Clay Patton who would pay the interest due thereon. The letter also contained the statement that he, Kaudle, has turned his part of the stock over to Patton. Tidwell cashed the check. On April 16, 1938, Clay Patton gave a note for $ 600, payable to J. L. Kaudle, secured by a chattel mortgage on a one-half interest in certain live stock located on the Kaudle farm. Appellant and her husband and a man whom they introduced as Kaudle to the bank cashier at Buffalo where the papers were prepared, were present when the note and mortgage were signed. This note, at the time of the trial, had been credited with payments totaling the sum of $ 472. The notations on the note with reference to these alleged credits were all made by appellant. The record justifies the inference that the man appellant and her husband introduced as Kaudle was in fact not Kaudle. After Kaudle disappeared Patton sued the administrator of the assets of Kaudle for a one-half interest in the live stock, but the court found against Patton. After the disappearance of Kaudle and after the letter had been received by Tidwell, an investigation led to the arrest of appellant and her husband. They were charged with forgery of the check received by Tidwell. The evidence leaves the inference that the signature to the check, "J. L. Kaudle," may have been genuine. Evidence, however, showed beyond doubt that the date of the check, the amount stated in the check and the name of the payee had been changed. The letter to Tidwell, which accompanied the check, was written by appellant. This she admitted. And she also admitted that she wrote the check with the exception of the signature. Appellant's husband testified that after the letter was written he made a trip to Denver, Colorado, for the purpose of mailing the letter at that point. Appellant testified that she knew her husband made that trip.
Only two points were briefed for a reversal of the judgment. First, appellant contends the evidence showed the alleged forged check was written by appellant in the presence of and under the direction of her husband, and therefore the law presumed that she committed the act under coercion of her husband, and that the evidence was insufficient to repel that presumption, citing State v. Miller, 162 Mo. 253, 62 S.W. 692, and other cases. The second point briefed pertained to instruction number five. It is claimed that the instruction was erroneous because it took from the defendant the protection of the presumption of coercion.
We are of the opinion the evidence fully justified a finding that appellant was a party to the scheme to defraud and did not commit the forgery under coercion. She was present at the bank when the mortgage and note were executed giving as security a one-half interest in the live stock later claimed by Patton. This note and mortgage were evidently made solely for the purpose of aiding in the scheme to obtain the property of Kaudle. Appellant wrote the letter informing Tidwell that Kaudle had turned the stock over to Patton. She knew Kaudle was not in Denver. A brother of Kaudle became alarmed about his disappearance and made inquiry of appellant as to his whereabouts. The record discloses she deliberately gave him information which she knew was not true. She informed him that she had heard from Kaudle at a point in Colorado. This was a false statement. She also made statements to officers inconsistent with her testimony at the trial. She contradicted herself while testifying in the trial of this case. Her evidence and her conduct clearly showed that she and her husband knew Kaudle was not in Denver. Appellant testified on direct examination that she wrote the check and the letter and addressed the envelope at her husband's request. On cross-examination she testified as follows:
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