State v. Poole
| Decision Date | 02 March 1929 |
| Docket Number | No. 29439.,29439. |
| Parties | THE STATE v. M.M. POOLE, Appellant. |
| Court | Missouri Supreme Court |
Appeal from Pettis Circuit Court. — Hon. Dimmitt Hoffman, Judge.
AFFIRMED.
A.L. Shortridge and W.D. Steele for appellant.
(1) It is not charged that the defendant procured the substitution of one person for another in acknowledging the instrument before the notary public, but he stands charged with forging the name of Osley Bradford to the assignment, and the State introduced a regularly acknowledged instrument which was prima-facie evidence of the facts recited therein, and was clothed with a presumption of correctness, which presumption was in defendant's favor, and his demurrer to the evidence at the close of the State's case should have been given. There is no charge that the acknowledgment is false, and the effect of the acknowledgment would have been the same even though it were signed by some other person on behalf of Bradford, provided he acknowledged the signature to be his, which the evidence shows he did. State v. Andrews, 248 S.W. 969; Albright v. Stevenson, 227 Mo. 334. (2) The acknowledgment purported verity and this court has repeatedly held that "To impeach a deed or the acknowledgment thereof, the proof must be clear and satisfactory." Webb v. Webb, 87 Mo. 541; Barrett v. Davis, 104 Mo. 549; Elliott v. Shepard, 179 Mo. 382; State ex rel. v. Thompson, 81 Mo. App. 550. There is no evidence as to the falsity of the acknowledgment, and in fact there was no charge of a false acknowledgment. Barrett v. Davis, 104 Mo. 555; Albright v. Stevenson, 227 Mo. 340; Howell v. Fire Ins. Co., 257 S.W. 181. (3) Even though Bradford could not write, if he acknowledged his signature it made no difference whether it had been written by him or some other person, as forgery is a false making or alteration with fraudulent intent of any writing, and if Bradford acknowledged the signature to be his there could be no false intent. State v. Cordray, 200 Mo. 31; Kelly's Criminal Law, sec. 819, p. 717. (4) Witness Howald was not shown to be an expert, and in fact it would not require an expert to examine an instrument through a glass. The jury were equally as competent to reach conclusions by examining the alleged erasure as was the witness, and in permitting the witness to state that a name had been erased and another substituted was permitting him to give his opinion and thereby invading the province of the jury. Pioneer Lumber Co. v. Van Cleave, 279 S.W. 24; Mahany v. Railways Co., 286 Mo. 620. Even had the witness, Howald, been an expert in handwriting, it was error to permit him to say that one name had been erased and another substituted, which he was permitted to do. Unrein v. Oklahoma Hide Co., 244 S.W. 928. The answer was clearly an opinion of the witness and highly prejudicial. Madden v. Mo. Pac. Ry. Co., 50 Mo. App. 666; Swan v. O'Fallon, 7 Mo. 121; Wagoner v. Jacoby, 26 Mo. 531.
Stratton Shartel, Attorney-General, and Mary Louise Ramsey, Special Assistant Attorney-General, for respondent.
(1) The demurrer to the evidence at the close of all the evidence was properly overruled because there was sufficient evidence to establish every necessary element of the offense. Defendant's own false statements and denials constitute valid links in the chain of evidence establishing his guilt. State v. Concelia, 250 Mo. 411. (2) The paper about which Howald testified was before the trial court, who was therefore in a better position to pass on the admissibility of the evidence than this court can be. It is elementary that every presumption will be indulged in in favor of the decision of the trial court and its ruling will not be disturbed except in a clear case. The trial court admitted this as a matter of fact, rather than of opinion, which was proper. Yates v. Waugh, 46 N.C. 483; Dubois v. Baker, 30 N.Y. 355; State v. Lewark, 186 Pac. 1002. (a) Even if this had been a matter of uncertainty calling for an opinion, Howald properly qualified as an expert to testify thereon. Vinton v. Peck, 14 Mich. 287; Birmingham Nat. Bank v. Bradley, 108 Ala. 205; Hendrix Bros. v. Gillette Bros., 6 Colo. App. 127; Hawkins v. Grimes, 52 Ky. 261; Hadcock v. O'Rourke, 6 N.Y. Supp. 549. (b) If this evidence were improperly admitted, it does not constitute reversible error because it relates to an immaterial matter which had nothing to do with defendant's guilt or innocence and was not disputed by him. State v. Moreaux, 254 Mo. 398; State v. Baker, 262 Mo. 689; State v. Sharpless, 212 Mo. 201; State v. Loesch, 180 S.W. 879.
Appellant was convicted in the Circuit Court of Pettis County of the crime of forgery in the third degree, was sentenced to imprisonment in the penitentiary for a term of two years, in accordance with the verdict of the jury, and has appealed.
The main insistence of appellant is that the trial court should have directed a verdict of not guilty. This requires a rather full statement of the facts which the evidence tended to prove. Appellant is a colored man. He was an agent for the Quick Payment Old Line Life Insurance Company and worked out of the Sedalia office of that company. His clients apparently were of the same race. An insurance policy for $500, dated June 6, 1927, was written by appellant on the life of Osley Bradford, another colored man, who met a violent death soon afterwards. After Bradford's death, appellant appeared at the office of the insurance company with an assignment to himself of Bradford's insurance policy, purporting to have been signed by Bradford and witnessed by L.S. Watson and David Robinson. To this was attached an acknowledgement, purporting to be that of Bradford and certified by a notary public.
The State offered evidence tending to show that the name "Osley Bradford," which appeared in two or three places on an envelope containing the insurance policy and possibly on other papers, was written by appellant. A witness, who qualified as an expert, testified that the names of Osley Bradford, as signed to the purported assignment, and as written by appellant on the envelope and other exhibits, were in one and the same handwriting, that is, were written by the same person. It was also shown by three or four witnesses that Bradford was illiterate and could not sign his own name.
Appellant took the witness stand and contented himself merely with testifying that he did not sign Bradford's name upon the various exhibits where the State's witnesses said they saw him write it. He also denied writing Bradford's name on the assignment of the insurance policy. Upon cross-examination, he said he did not know who did write Bradford's name upon the assignment.
Robinson and Watson, who were also colored, were called as witnesses and testified that they accompanied appellant and Bradford to the office of the notary public and heard Bradford state that he had signed his name to the assignment and that they heard him acknowledge the same to be his own act. They said that the assignment was already signed when they first saw it and that they did not see Bradford sign it.
The notary public testified rather hazily concerning the taking of the acknowledgment to the effect that appellant and Bradford and the two witnesses came before him for that purpose. He did not know Bradford, but was...
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